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HARVARD LAW LIBRARY
Received
. O. ^ . \ ^ Ir *1^
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IRISH CHANCERY REPORTS.
REPORTS OF CASES
ABGUED AND DETERMINED IN
THE HIGH COURT OF CHANCERY,
Court 0f Jppeal in C^anttrg,
ROLLS COURT,
THE LANDED ESTATES COURT,
▲ND
COURT OF BANHHUPTCY AND INSOLVENCY,
IN
IKELAND,
DcBiNG THE Years 1860 and I66I.
Cjbanters, antt Court o( 9$$e«l fn Cjftintrrs:
Bt JOHN PITT KENNEDY, Esq. WILLIAM HICKSON, Esq.
Airo LESLIE S. MONTGOMERY, Esq.
Bt EDWARD SHIRLEY TREVOR, Esq.
%ttxioei fftftateif Court:
R. W. MCDONNELL, Esq. and ROBERT REEVES, Esq.
Court o{ )8«tdmi)itcs snli Sntfolbnits :
Bt JOHN O'LEARY, Esq. and GEORGE CREE, Esq.
YOL. XL
DUBLIN:
HODGES, SMITH & CO., 104 GRAFTON STREET.
1861.
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/l^e . ^at^ . 3.^-^ /r6 9
Printed by Datid Cobbbt, 11 Upper Onnond Quay, DabHii.
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^^
JUDGES AND LAW OFFICERS,
HIGH COURT OP CHANCERY.
Lord Chancellor, — The Right Hon. Mazdsbb Bradt.
Master of the Rotte The Right Hon. Thomas Bebrt Cusack Smith.
COURT OF APPEAL IN CHANCERY.
The Right Hon. The Lord Chancellor.
Lord Juttiee. — The Right Hon. Francis Blaokburne.
LANDED ESTATES COURT.
Judges, — The Hon. Mountifort Lonofield.
The Hon. Charles James Habobeave.
The Hon. William C. Dobbs.
COURT OF BANKRUPTCY AND INSOLVENCY.
Judges, — The Hon. Walter Bebwick.
The Hon. David Lynch.
ATTORNEYS-GENERAL.
The Right Hon. John D. Fitzoebald, Q. C.
The Right Hon. Rickabd Deast, Q.C.
The Right Hon. Thomas CHaoan, Q. C.
SOLICITORS-GENERAL.
Rickabd Deasy, Esq., Q. C.
Thomas O'Hagan, Esq., Q. C.
James A. Lawson, Esq., Q.C.
SERJEANTS.
John Howlet, Esq., Q. C.
Thobcas O'Haoan, Esq., Q. C.
GrEBALD Fitzoibbon, Esq., Q. C
Jaices a. Lawson, Esq., Q. C.
Edwabd Sullivan, Esq., Q. C.
Mbx.— In the Long Vacation of I860, Mr. Serjeant Fitzoibbon was appointed Master in
Chancery, in the room of A. Ltle, Esq.
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X.
Ada]
Alto
GOBBIGENDA.
Page 205, line 14 firom top,>r " two " read " four." V
,, 309, line 2, for " there are two parties," read *' there are not two parties." Brer
„ 335, first line of second paragraph, /)r " incumbered," read " unincumbered." g
Bon
Cm
Cot
Cw
Cot
do
Da]
A TABLE
OF THE
NAMES OF THir CASES KEPORTED.
N.B.— ^ (veriusj always follows the name of the Flaintiff.
Adams t; Gramble
...269
Delahoyd, In re
...404
Attorney-General, Daly v
... 41
DoddsrDodds
... 374
Attorney-Greneral v Evans
... 171
Doran v Carroll
... 379
B
Down and Connor, Bishop
of, V
Barry, Brereton v ...
... 97
Miller
App. 1
Brereton v Barry
... 97
Duckett V Gordon ...
... 181
Browne v Coote
... 213
Dnndalk and Enniskillen Railway
Browne v Fitzpatrick
... 213
Company, In re...
... 467
Bnlfin V Danne
... 198
Dunne, Bulfin v
... 198
Burgess' Trusts, In re
... 164
E
Burmester, In re
... 1
Edgeworth's Estate, In re
293, 294
C
Edwards' Estate, In re
... 367
Caffirey, Kinsella » ...
... 164
Elliott 9 EUiott
... 482
Carroll, Doran p
... 879
Evans, The Attorney-General t; ... 171
Comyn's Estate, In re
... 830
F
Coote, Browne v
... 213
Fitzgerald v (yConnell
... 437
Courtney, In re
... 410
Fitzgerald's Estate, In re
278, 356
Croebie, In re
... 432
Fitzpatrick, Browne v
... 218
D
Fitzpatrick, Watson v
... 213
Daly V The Attorney-General
... 41
Fowler v Lightbume
... 495
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TABLE OF CASES REPORTED.
G
In re Houghton
... 136
Gamble, Adams v ...
... 269
In re Humble
... 132
Gardiner, In re
... 519
In re Hunt's Estate ...
...299
Gordon , Duckett v ...
... 181
In re Jackson
... 145
Gray t; Gray
... 218
In re Jessop and others
... 424
Gray v Robinson
... 205
In re Johnston
... 62
H
In re Kennedy's Estate
... 298
Hammersley, In re ...
... 229
In re Lanauze
... 19
Harding, In re
... 29
In re Lawder's Estate
... 346
' Harley v Harley
... 451
In re Lockhart
... 68
Harris, Malone v
... ^3
In re M'Kenna
... 65
Homan v Skelton
... 75
In re Plunketf s Estate
... 361
Houghton, In re
... 136
In re Power's Estate
288, 295
Humble, In re
... 132
In re Quin
... 57
Hunfs Estate, In re ...
... 299
In re Rathbome
... 141
Hutton, Joyce v
... 123
In re Robinson
... 385
1
In re Roddy's Estate
... 369
In re Burgess' Trusts
... 164
In re Sallery
... 236
In re Burmester
... 1
In re Sanderson
... 421
In re Comyn's Estate
... 330
In re Smith and Ross
... 897
In re Courtney
... 410
In re Turner's Estate
... 304
In re Crosbie
... 432
J
In re Delahoyd
... 404
Jackson, In re ^
... 145
In re Dundalk and Enniskillen
Jessop and others. In re
... 424
Railway Company
... 467
Johnston, In re
... 62
In re Edgeworth's Estate
293, 294
Joyce t; Hutton
... 123
In re Edwards' Estate
... 367
K
In re Fitzgerald's Estate
278, 356
Kennedy's Estate, In re
... 298
Ifi re G-ardiner
... 519
Kemaghan v M*Nally
... 52
In re Hammersley ...
... 229
Kinsella t; Caffrey ...
... 154
In re Harding
... 29
Knox V Mayo
... 265
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TABLE OF CASES REPORTED.
m
Q
Lanauze, In re
... 19
Qnin, Inre
... 57
Lawder's Estate, In re
... 346
R
Ligbtburne, Fowler v
...496
Rathbome, In re
... 141
LitUewood, Orr V ...
... 502
Redmond, Tobin v ...
... 446
Lockhart, In re
... 68
Rice V O'Connor
... 510
Long V Long
... 252
Robinson, Gray v
... 205
M
Robinson, In re
... 385
McDowell, M'Tear v
••• 338
Roddy's Estate, In re
... 869
H*Kenna,Inre
... 65
S
M^allj, Kemagban r
... 52
Sallery, In re
... 236
M^ear v M'DoweU
... 338
Sanderson, In re
... 421
Malone v Harris
... 33
Scott V Scott
... 114
Martin, Woods p
... 148
Sim V Sim
... 310
Mayo, Knox V
...265
Skelton, Homan v ...
... 75
Miller, Bishop of Down and Con-
Smith and Ross, In re
... 397
nor V
App. 1
Smyth, Walcott v ...
... 266
. N
T
Newton v Newton ...
... 239
Thornton v Thornton
... 474
O
Tobin V Redmond . . .
... 445
O'CJonnell, Fitzgerald v
... 437
Turner's Estate, In re
... 304
O'Connor, Rice v
... 510
W
Orr V Little wood
... 502
"Walcott r Smyth ...
... 266
P
Watson V Fitzpatrick
... 213
Flnnkett's Estate, In re
... 861
Woods V Martin
... 148
Power's Estate, In re
288, 295
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A TABLE
OP
THE NAMES OF THE CASES CITED.
N.B. — V (vertuM) always foQowB the name of the Flaintiff.
... 386
Atkinson, Hyde v ...
...350
Acheson v Fair
... 426
Attorney-General v Golding ... 43
Ackerdey, Tipping v.. .
382, 383
Attorney-General v Hurst 43, 45
Adams v Jones
... 864
Attorney-General v Ironmongers
AdamSy Wedgwood v...
... 215
Company
43,44
Addison v Bnsk
166,
, 160, 161
Attorney-General v. Poulden ... 438
Adey, Wills v
... 284
Attorney-General v Sheffield Gras
Aldrich v Cooper
348,
351, 352
Consumers Company ... 36
Aldndge, Strickland v
... 224
Audsley v Horn J 15,
118, 119, 120,
Alison V Furnival
... 385
121, 122
Ancastcp, The Dnke of, Lord
Tyr.
Averajl v Wade
370, 372
connell v
... 100
Ayres, "Vicars Choral v
...496
Anderson, White v ...
...229
[bachelor, Bennett v ...
... 142
Andrewes v George ...
... 184
Baggott V Meux
271, 272, 276
Andrews, Messenger v
... 475
Bailey, Keppel t;
36, 38, 138
Anster 9 Nehns
... 55
Bailey, Power v
272, 275
Applebee, Be
...247
Baker v Baker
438, 439, 442
Appleford, Easnm v ...
... 428
Baker v Gostling
... 174
Armagh, Archbishop of, Marraj v
Baldwin, Popham v ...
512,516
App. 41
Ban V Bumford
... 128
Armstrong, Tullettv
271
, 273, 275
Ball, Forbes v
... «}4v
Armstrong, Williams v
... 49
Balls V Thick
... 457
Arnold, Ex parte *••
... 404
Bantock, Hockley v •••
199,204
Arrowsmith, Stupart v
... 314
Bardwell, Ex parte ...
... 415
Arrowsmith's Trust ...
... ^\jnt
Bargeman, Scott v ...
... 156
Amndale, Blades V ...
... 457
Barker, Wharton v •••
^.494
Ascne, Vanghan v ...
App. 11
Barkworth v Toung
188, 191, 192,
Asl^town, Lord, Cosby v
476, 480
193,194
Atkinson, Bernasconi v
362, 364
Barlow v Osborne ...
...230
1
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TABLE OF CASES CITED.
Barnes v Racster 346, 348, 349, 350,
351, 352, 353, 354, 355
Barnbart v Greenshields
Barrett 9 Hajter
Barron v Barron
Barron, Honsin v
Barry, Brereton v ...
Barton v Barton
Barton, Major v
Barwell, Wyatt v
Bateman, Doe d. Freeman v
Batwell, Massy v
Beaumont v Fell
Beaumont v The Marquis of Salis-
bury
Beck t; Bum
Bedford, The Duke of, v Trustees
of British Museum
Beech t; Jones
Beeton, Ex parte
Bell V Hyde
Bell V Jackson
Bell, Scott V
Bell, Tindall v
Bellamy v Sabine
Bennett V Bachelor ••.
Bennett v Bernard ..<
Bennett, Bullock v ...
Bennett v Marshall ...
Bentley, Sherratt v ...
Benyon v Maddison .,
Bernard, Bennett v ...
Bernard v MinshuU ...
Bemasconi v Atkinson
Berry v Berry
Biel, Hammersley v ...
Biggs, Sadlier v
Biggs V Ward
Bignold, Bugden v . .
Bignold V Giles
BingHam, Duke of Portland v, Jfp. 13
Bingham, Goodhill v... ... 271
JBion, James v ... ... 495
511
47
229
457
98
481
174
516
307
100
362
495
485
... 138
... 58
... 415
... 275
... 844
123, 130
... 58
... 268
... 142
... 268
...490
... 362
426, 428
... 494
... 268
219, 223, 227
362, 364
... 165
... 189
... 32
... 218
...350
206, 211
Birch V Wade
... 340
Birkhead, Doe d. Clift v
... 156
Bishop, Cox t;
... 446
Bishop, Davenport 9...
130, 196
Bishop, Grace v .^
... 404
Black, Willis V
183, 190
Blackford v Long
... 426
Blackmore 9 Ince
... 339
Blackstone, Ex parte...
... 410
Blackwell v England
283, 290
Blades v Arundale ...
... 457
Blagrave v Routh ...
325, 326
Blake, Darcy v
... 54
Blake v French
... 123
Blakely v Smith
...511
Bliss, Dean of Ely v ...
305, 308
Bliss V Woods
Jpp. 11
Bloomfield, Daly v ...
... 305
Blundell, Camoys v ...
862, 365
Boddington, Witts v ...
... 340
Boles, Brandon v
199, 203, 204
Bolton, Brennan v ...
... 512
Bolton, Townly v
...206
Bonnaker v Evans ...
App. 38
Bott, Lawes v
... 68
Bourke v Murray
... 67
Bourne, Dawson v ...
... 120
Boutell, Boublat t; ...
... 290
Bouverie t; Bouverie...
... 484
Bowman t; Taylor ...
... 55
Bowyer, Curre v
... 496
Boyd V Robins
... 60
Boyd V Bobinson
... 59
Boyse v Cotelough ...
... 387
Bradbury, Ex parte ...
... 440
Bradford, Buffar v ...
... 115
Bradford v Roulston ...
...511
BradshAw v Bradshaw
862, 364
Bradstreet, Shannon v
... 517
Brady v Fitzgerald ...
174, 178, 446,
447, 451
Brady, Nelson v
213, 216
Brandon v Boles
192, 203, 204
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TABLE OF CASES CITED.
m
Branham v Ringrose
... 484
Brathwaity Lampleigh v
... 58
Brawn, Doe v
... 456
Breaiy, Boundell v ...
... 132
Brennan v Bolton ...
... 512
Brereton v Barry
... 98
Bretz, Fickard v
... 359
Briggs V Penny
219, 226, 426
Brisick v Manners •••
199, 204
British Museum, Trustees of, The
Duke of Bedford v
... 138
Britton v Twig
... 375
Brook, Cobbett v ...
... 16
Brown, Grreville v ...
... 26
Brown v Higgs
... 840
Brown v The Marquis of Sligo ... 79
Browne t; Coote and others ... 215
Browne, Doe v
... 464
Browne v Fitzpatrick and others 214
Browne, Potts v
... 386
Browne, Probyn v ...
... 385
Browne v Spenoe
App. 27, 28
Browne's Trusts
... 426
Brownrigg, Campbell v
... 389
Bruce, Ex parte
199, 200, 204
Buchanan, Smith v ...
... 885
Buck, StronghiU v ...
... 100
Buffur V Bradford ...
... 115
Bugden v Bignold ...
... 350
BuDer, Carpenter v ..
... 100
Bullock V Bennett ...
... 490
Bulteel, Ex parte ...
200, 203
Bumford, Ball v
... 128
Burke a minor, In re
... 27
Burke, OTay v
... 109
Bum, Beck v
... 485
Burnett, M'Donnell v
... 259
Burrough v Philcox ...
... 340
Burton v Fitzsimon ...
...259
Bushby, Stockdale v
... 362
Bushell V Bushell ...
... 280
Busk, Addison v
156, 160, 161
Busk, Lee o
160, 162
Bustard V Saunders ... ... 115
Bute, Marquis of, v Conyngham ... 439
Butler V Portarlington 96, 259
Butterfield V Heath ... ...123
Cadogan, Wright v ... ... 272
CalcraftvWest ... ... 40
Callender, Wright v ... 439
Cammell v Sewell ... ... 387
Camoys v Blundell ... 362, 365
Campbell v Brownrigg ... 339
Campbell, Smith v ... ... 362
Canterbury, Archbishop of, and
Bishop of London, The King v
App. 41
Carberry v Cox ... 48, 46
Carey, Creed v ... ... 132
Carlisle, The Earl of, Lechmere v 132
Carpenter V BuUer ... ... 100
Carr, HoUis v ... ... 183
Carr v Marsh ... App. 86
Carter, Parker « ... ... 123
Cartwright, Doyne v ... 156
Casamajor v Pearson ... 439
Casselis, Kennedy v ... ... 886
Cassidy, Ex parte ... 410, 411
CatoroCator ... ...115
Caulfield, Ex parte ... 413,416
Chambers, Gates v ... App. 23, 29
Chambers v Goldwin 825, 326
Chaplin v Chaplin ... ... 142
Chapman, Maddison v ... 426
Charlesworth, Malcolms v ... 268
Charlton, Doe d. Burren v ... 376
Charlton v Driver ... ... 503
Chinnery, Muskerry v ... 130
Chitty, Williams v ... 143, 144
Cholmondeley, Fitzgerald « 314
Cholmondeley, Pitt v ...326
Cholmondely, Walpole v ... 247
ChurchiU V Dibben ... 270,273
Clarendon, M'Auley v ... 219
Clarke, Dawson v ... 219, 227
Clarke, Mason « ... 1 16, 1 16, 121
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Google
ir
tabu: of cases cited.
79
230
43,47
... 123
...227
... 16
...485
...387
... 456
456, 457t ^6b
... 404
... 518
165, 169
... 86
... 130
...496
••. 58
268, 269
Clarke v Moore
Cleghom, Moore v .<
Clements, Scott v
(Sergy Society, In re
Clerk V Nettleship ..
. Clowea, Russell v
Cobbett V Brook
Cock, Matchwick V .
Coldoagh, Boyse « .
G^ Taylor v
Coleman v BawUnson
Collard, Lewis «
Collen 9 Gmrdiner
CoUetOQ V Grarth
Collios V Plumb
OoDyear v Mulgrave
Oolmore 9 Tyodall .
Oompion, Smith o
Condon, Walcott v .
Con^, Smith v
Conyngham, Marquis of Bute v ... 439
Cooke, Idle v ... ... 376
Cooke, Norris v •.. «.. 511
Cooper, Aldrich p ... 348, 351, 352
Copier 9 Cooper ... ... 426
Cooper, Sparrow «... .^.. 138
Ooote and others, Browse « ... 215
Coj^er-miners Company, Wood v 183
Coppin, Dillon V ... ...189
Corbett's Trusts, Be ... 843
GomwaU, In re ... ... 350
Cosby V Lord Arirtown 476, 480
Coventry v Coventry ... 132
CoKV Bishop ... *.. 446
Oox, Carberry v ... 48, 46
Cox, Qrigbyr . ... 271,275
Cox, Hewer v ... ... 359
CoK,Woodo ... ...219
Crawford, Gray v ... ... 213
Ckawford v Trotter ... 116, 120
Creed* Carey ... ...132
Creed, Schreier v ... ... 35
Cranan « Hawkes 174, 446, 447, 451
Creswick v Bokeby ... App. 25, 29
Crockett v Crockett ... 115, 120, 121
Crofts V Feuge ••• 132, 135
Crosbie, Gilman v ... ... 511
Crosbie v Murphy 281, 290, 358, 898,
399
Crosbie, Stoughton v 99, 100, 512
Crosbie, Sugrue v ... ... 305
Crossling v Crossling ... 340
Crowley's case ... ... 415
Cnlliford, Westcott tr ... 184
Cumming, In re ... 432, 435
Carre v Bowyer ... ... 496
Carrie v Nind ... ... 128
Curtis V Curds ... ••• 54
Curtis, Johnson v ... 314, 324
Curtis V Price ... ... 495
Custance, Holmes v ... ... 362
Daly V Bloomfield ... ... 805
Darbon v Rickards ... ... 439
Darcy v Blake ... ... 54
Darthez v Lee ... ... 315
Davenport v Bishop 1 30, 196
Davis V G^u'diner ... ... 25
Davis V Hone ... ... 503
Davis, Selkrig v 385, 887, 391
Davoren, Day t; ... ... 430
Dawding, Bippon v ... . ... 272
Dawson v Bourne ... ••• 120
Dawson v Clarke ... 219, 227
Dawson v Dawson ... 314, 824
Dawson, Stocken v ... .., 509
Day V Davoren ... ... 480
Dean, Stocker v ... ... 138
Deane, Rex v ... .«. 456
Dedue, Fremoult v ... 132, 134
Delmare v Bobello ... ... 362
De Medina t; Grove ... ... 387
De Mdeyns, Joyce v ... 17
Denison, Druce v 165, 169, 170, 171
De Bode, Re ... ... 247
De Vitre, Jeflfrey v 116, 120, 121
Devondnre, Duke of, v Eglin 35, 37
Digitized by
Google
TABLE OF CASES CITED.
De Witte o De Witte
... 115
Doffield V Doffield ...
... 4sf4
DibbeD, Churchill v ...
207, 273
Duignan, Harrison v...
... 447
Diggee, Flock v
174
, 305, 807
Dummer v Pitcher . . .
... 476
Dillpn V Coppin
... 476
Dunbar t; Tredennick
... 100
DUlon, Hodflon v
App.
36, 37, 39
Dunn, Maclean v
...511
Dillon « Parker
... 476
Dwyer, Trant v
... 79
Ditchfield, Francis « ...
... 428
Easum v Appleford ...
... 428
Dodd, Hine v
... 512
Edge V Worthington...
199, 203, 204
Dodgson, Johnson v ...
...511
Edmeades, Pearce v ...
...206
Doe V Brawn
.;. 456
Edmonds, Proeser v ...
... 92
Doe V Browne
...464
Egan V Morris
... 164
Doe V Douston ... 456, 464
Dee V Huthwaite ... 364, 365
Doe V Jones ... ••• 464
Doe V Laming ... ... 375
Doe « Milborne ... ...101
Doe V Bawlings ... ... 94
Doe o Wilton ... ... 164
Doe d. Baoiford V Hayky ...138
Doe d. Burren v Charlton ... 875
Doe d. Burton « White ...484
Doe d. Clift v Birkbead ... 156
Doe d. Freeman v Bateman ... 807
Doe d. Grains 9 Rouse ...362
Doe d. Phillips v Bawlings ••• 80
Doe d. Phipps v Boiling ... 259
Doe d. Stephens v Scott 271, 275
Doe d. Westmoreland v Smith ... 456
Doaner t; Fortescue ... ... 54
Dorrton, Holliday v ... ... 229
Douglas, Hardwicke v 426, 431
Douglas, WiUis v ... ... 206
Douston, Doe v ... 456, 464
Down V Down ... ... 496
DowDiog, Ex parte ••• ... 410
Doyne v Cartwright ... ... 156
Drew 9 Eellick ... ... 206
Drew V Lord Norbury 519, 520
Drew 9 Power ... 314, 325
Driller, .Charlton V ... ...508
Druce 9 Denison 165, 169, 170, 171
Dnice, Reimers 9 ... ••• 886
Drury, Williams 9 ... ,.. 404
Eglin, Duke of Devonshire 9 35, 37
Elcock, Mapp 9 ... ... 227
EUis, Grant 9 ... 804, 306
Ellis, Knight 9 ... ... 375
Eij, Dean of, v Bliss... 305, 398
Emery « Mucklow ... ... 68
England, Blackwell 9... 283, 290
Evans, Bonnaker 9 ... -^^PP' 38
Evans, Johnson « ... ... 457
Evans 9 Bees ... ... 415
Exeter, The Bishop of, Southcome 9
79, 80
Ex parte Arnold ... ... 404
Ex parte Bardwell ... ... 415
Ex parte Beeton ... ... 414
Ex parte Blackstone ..* ... 410
Ex parte Bradbury ... ... 410
Ex parte Bruce ... 199, 200, 204
Ex parte Bulteel ... 200, 208
Ex parte Cassidy ... 410, 411
Ex parte Caulfield ... 413, 415
Ex parte Downing ... ... 410
Ex parte Fitzhenry ... ... 410
Ex parte Hickie ... ... 410
Ex parte Hooper ... 199, 203, 204
Ex purte Isaac ... ••• 414
Ex parte Kendall ... ... 848
Ex parte Langhome ... ... 414
Ex parte Lee ... ... 410
Ex parte Legge ... 412, 414
Ex purte M'Gee ... ... 415
Ex parte Martin ... ... 410
Digitized by
Google
VI
TABLE OF CASES CITED.
Ex parte MiUer ... 413, 414, 415
Ez parte Nolan ... ... 413
Ex parte OUver ... 410,412,415
Ex parte Pearse and Protheroe
199, 203, 204
Ex parte Bamsden ... ... 440
Ex parte Rogers ... 160, 161, 162
Ex parte Stokes ... ... 415
Ex parte Yogel ... ... 414
Ex parte Ward ... ... 410
Eyre v Marsden ... ... 340
Eyre v Monro ... 184, 191
Fair, Acheson v ... ... 426
Farmer v Mills ... ... 439
Farrell v Hildridge ... ... 184
Fell, Beaumont v ... ... 362
Feltham's Trusts, In re 862, 366, 367
Ferrall, In re ... ... 290
Fenge, Crofts v ... 132, 135
Field V Moore ... ... 271
Finch V Harris ... 4/^* ^^
Findon v Findon ... ... 339
Fisher v Fisher ... 143, 145
Fitzgerald, Brady v » 174, 178, 446,
447, 451
Fitzgerald v Cholmondeley ... 314
Fitzgerald v O'Connell ... 259
Fitzgerald, Be ... ... 358
Fitzgerald's Estate, In re 290, 294
Fitzhenry, Ex parte ... ... 410
Fitzmaurice v Sadlier 99, 123
Fitzpatrick & others, Browne v ... 214
Fitzpatrick, Enaresboroagh v ... 426
Fitzpatrick, Watson v ... 215
Fitzsimon, Burton v ... ... 259
Flack, Owen v ... ... 495
Florence, Taplin v ... ... 39
Flnester t; M'Clennan ... 404
Fonblangue t; Lee 281, 282, 286, 859
Forbes v Ball ... ... 340
Forbes, Jackson t; ... ... 340
Fortescne, Dormer v .•• ... 54
Foxley'scase ... ...414
Francis v Ditchfield ...
... 428
Frankfort V Thorpe ...
... 503
Freeland v Neal
Jpp. 36, 88
Fremoult v Dedire ...
132, 134
French, Blake V
... 123
French r French
... 116
Froggart, Sacheverell v
... 137
FuUbrooke, Hill e ...
... 265
Furnival, Alison v ...
...385
Garcias, Ricardo v ...
... 387
Gardiner, CoUen v ...
...518
Gardiner, Davis v ...
... 25
Gardiner, Stringer v.. .
... 362
Gardiner v Townsend
... 132
Garrard v Tuck
... 55
Garratt v Niblock ...
... 485
Garth, Colleton v
166, 169
Gastrel « Jones
Jpp. 11
Crates V Chambers ...
App. 23, 29
Geddington, The King v
... 517
Geering, Weatherall v
... 137
Geoi'ge, Andre wes v ...
... 184
Gibson v Seagrim
348, 351
Gibson, Whatman v ...
35, 138
Giles, Bignold v
206,211
Giles V Grover
... 457
Oilman v Crosbie
... 511
Gladstone, Office v App. 36, 38, 39
Glazier, Goodrigh t v... ... 247
Glynn, Harding v ... ... 340
Gt>dolphin, Marlborough v ... 840
Gxklson, Holmes v ... ... 481
Godson V Sanctuary ... ... 457
Gliding, Attorney-General v ... 43
Gx>ldwin, Chambers v 325, 826
Grolton V Handcock ... ...142
Gomme, Hill e ... ... 130
Gompertz v Gompertz 840, 343
Goodhill V Bingham ... ... 271
Groodlittle, d. Peake v Pegden ... 375
G-oodright v Glazier ... ... 247
Goodright v Moses ... ... 123
Gtx)dyear, In re ... ... 357
Digitized by
Google
TABLE OF CASES CITED.
Vll
Grordon v Whieldon
Gronnan, Hill v
Gorman, Taylor v
GosUing, Baker v
Grough, Osborne v
Grace v Bishop
... 115
... 130
213, 216
... 174
... 284
... 404
Granbj, Marquis of, Earl of Nor-
thumberland V ... ... 475
Grant e Ellis ... 304, 306
Grares v Holland ••• ... 156
Gray v Crawford ... ... 213
Gray v Minnethorpe ... ... 814
Gray v Pearson 21 1, 212, 442, 492
Gray, Ward v 115, 118, 121, 122
Greenshields, Bamhart v •••611
Gregg, Office v ... App. 36, 38
Gregory, M*CiiUoch v 496, 601
Greville v Brown ... ... 26
GrigbyrCox ... 271,276
Grove, De Medina v ... ... 887
Grover, Giles v ... ... 467
Gummoe v Howes ... ... 376
Gurly V Gurly ... 165, 170, 171
Gurly, Morgan v ... 79, 80, 96
. Hadland's case ... ... 415
Halbard, In re ... 332, 336
Hall, Johnston v ... ... 382
Hall V Roche ... ... 467
Hamilton v Hamilton ... 449
Hamilton v Haughton ... 447
Hamilton, Nixon v ... ... 99
Hamilton v Eoyse ... ... 512
Hammersley v Biel ... ... 189
Hams, In re ... 389, 408
Handcock, Golton v ... ... 142
Handcock v Handcock 370, 371, 372
Hannyngton, Wilcox v ... 271
Harding v Glynn ... ... 340
Hardwicke v Douglas 426, 431
Hardwicke, Lord, v Vernon ... 814
Harris, Finch e ... Jpp. 36
Harris, Hethergill v ... ... 486
Harris v Mott ... 271, 274
Harrison v Duignan ... ... 447
Harrison v Lawford ... ... 404
Hartfort, In re ... 99, 100
Hartley v OTlaherty 370, 378
Haslope v Thome ... 282, 283
Hassard, Newcomen v 271, 274
Haughton, Hamilton v ... 447
Hawker, Wickham v... ••• 39
Hawkes, Cremen v 174, 446, 447, 461
Hawksbee v Hawksbee ... 55
Hayley, Doe d. Bainford v ... 138
Hayley, Boe v ... ... 79
Haylin, Taylor v ... ... 326
Hayter, Barrett v ... ... 47
Hayter t; Tregoe ... ••• 43
Headford, Marqnb of, Yanghan v 116
Heap V Tongue ... ... 123
Heaphy v Hill ... 79, 80, 96
Heath, Buttterfield v ... 123
Heath v Perry ... ... 206
Helps, Manning v ... ... 306
Heneage, Meredith v ... ... 218
Hertford, Marquis of, v Zichi ... 197
Hervey v Hervey ... ... 99
Hethergill « Harris ... ...486
Heveningham v Heveningham ... 360
Hewer v Cox ... ... 859
Hewson v Myers ... ... 130
Hickie, Ex parte ... ... 410
Higgs, Brown v ... • ... 340
Hildridge, Farrell v ... ... 184
Hill V Fullbrooke ... ... 265
Hill V Gromme ... ... 180
HillvGrorman ... ...180
Hill, Heaphy v ... 79, 80, 96
Hillary v Waller ... ... 447
Hillcoat, Moisey 9 ... j^. 11
Hinds, Martin v ... App. 30, 88
HinevDodd ... ...612
Hockley v Bantock ... 199, 204
Hodder, Shannon v ... ... 305
Hodges, Wilson v ... ... 449
Hodgson V Hutchinson ... 183
Digitized by
Google
Tin
TABLE OF CASES CITED.
Hodson V Dillon -^^^^
36, 37, 39
In re Ferrall
...
... 290
Holland, Graves v ...
... 156
In re Fitzgerald's Estate
290,294
Hdliday v Dorrton ...
...229
In re Goodyear
...
... 357
Hollis V Carr
... 183
In re Halburd
...
332,335
Holntes t; Castance . . .
... 362
In re Hams
...
898, 403
Holmes v Godson
... 481
In re Hartfort
...
99, 100
Holmes v Bemnon •••
... Soi
In re Hughes
...
... 332
Holmes, Swan v
... 206
In re Kelly
...
19,26
Hdt V Holt
... 100
In re Keilly
...
348, 350
Hone, Davis V
... 503
In re Keen
...
70,71
Hooper, Ex parte ...
199,
, 203, 204
In re Lord
...
... 410
Horn, Aadsley v 115,
118,
119.120,
In re Low's Estate
...
...268
121, 122
In re M'Netle
...
77, 82, 84
Horner^ Mayor of Kingston-!
upon-
In re Nolan
...
...410
UuMv
... 447
In re Philips
...
...525
Honsin « Barron
... 457
In re Pj11«
...
.^414
How, Jones v
183, 192, 193
In re Bogers
...
... 422
Howes, Gummoe v ...
... 875
la re Smith and Ross
357, 360
Hoyte V Thompson ...
386, 387
In re Stokes
...
... 414
Hubbard t; Ljster ...
... 15
In re Tipping's Estate
... 174
Hughes, In re
...332
In re Wynch's Trusts
... 375
Hughes, Whitehead v
... 68
Ironmongers Company, Attorney-
Hulme V Hulme
...339
General v
...
43,44
Hulme V Tennant ...
... 375
Irving V Toung
...
... 314
Hunt, Pfeilitzer v •..
...299
Isaac, Ex parte
...
... 414
Hunter v Kennedy ...
...268
Isaac, Richard v
...
...290
Hunter, Phillips v ...
...387
Jack V M^Intyre
...
...496
Hunter v Potts
385,387
Jack V M*Loughlen
...
...305
Hurst, Attorney-Genera]
[v
43,45
Jackson, Bell v
...
... 344
Hutchinson, Hodgson v
... 183
Jackson v Forbes
...
... 340
Huthwaite, Doe V ...
364,365
Jackson v Roe
• a.
... 15
Hyde v Atkinson
...350
Jackson, Russell v
...
219, 224, 227
Hyde, Bell v
... 275
Jackson v Saunders
... 259
Hyde t; Skinner
... 79
James v Bion
...
... 495
Idle V Cooke
... 375
James' case
...
... 415
Inoe, Blackmore v ...
... 339
James, Locke v
...
... 247
Ince, Parker V
... 61
James v Rice
...
... 199
Incorporated Society, Shiel v
... 305
James v Salter
...
305,306
In re Burke a minor
... 27
Jeffrey v De Vitre
...
116, 120, 121
In re Clergy Society
43,47
Jeffreys, Walker v
...
* 79,95
In re Cornwall
... 350
Jeffrys 9 Jeffrys
...
... 129
In re Cumming
432, 435
Jennings v Ward
...
...368
In re Feltham's Trusts
362, 366, 367 1
Jesson V Wright
...
375, 376
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Google
TABLE OF CASES CITED.
IX
Johnson t; Curtis
314, 324
Johnson v Dodgson ...
...511
Johnscm v Evans
... 457
Johnston v Hall
... 382
Johnston v Webster ...
... 520
Joliand V Stainbridge
... 512
Jones, Adams v
...364
Jones, Beech v
... 58
Jones, Doe v
... 464
Jones, Gastrel V
Aj^. li
Jones V How
183, 192, 198
Jones V Jones
... 603
Jones 9 Kearney
80,229
Jones V Martin
184, 191, 198
Jones 9 Randall
...206
Jones V Smith
...611
Joyce V De Moleyns
... 17
Ealloway, Short v ...
... do
Kay V Kay
... 206
Keane, Momington v
... 229
Kearney, Jones v —
80,229
Kelly, Be
348, 850
Keity, Wright «
... 214
KeiUi, Trebec »
Jpp.96
Kellick, Drew v
...206
Kelly, In re
19,26
Kelly • KeUy
28, 29, 214
Kendall, Ex parte ...
... 348
Kennedy V Casselis ...
... 886
Kennedy, Hunter • ...
...268
Kennedy v Kingston
... 340
Kent V Stoney
... 80
Keen, In re .
70,71
Keppel V Bailey
36, 88, 138
K^ V Williams
199,204
Sadd, Milliken v ...
... 123
King, Sarory «
...108
King, The, v Archbbhop of Canter-
bury and Bishop of London idlpp. 41
King, The, v Geddington ... 517
King, The, V Long Berrington ...517
King, The, v Toddington «.. 517
Cngston, Kennedy v ... 340
Kingston-upon-HuU, Mayor of, v
Homer ... ... 447
Kingston's, Duchess of, case ... 386
Ejrke v Kirke ... ... 247
Kirkman's Trusts ... ... 494
Knaresborough v Fitzpatrick ... 426
KnatchbuU, Woodgate v ... 456
Knight V Ellis ... ... 375
Knight V Knight ... ... 218
Knox, Wood v ... ... 259
Lainson v Lainson ... ... 206
Lambert v Lambert ... ... 382
Laming, Doe v ... ... 375
Lampleigh v Braithwait ... 58
Lanauze t; Malone ... ^.. 24
Lane V Page ... ...100
Langham t; Sanford ... 426
Langhome, Ex parte ... 414
Langhome's case ... 410, 418
Langley v Thomas 430
Lansley, Major v ... ... 272
Lassenoe v Tiemey 271, 339| 340, 342
Law V Warren ... ... 123
Lawes v Bott ... ... 68
Lawford, Harrison v ... 404
Leadbitter, Wood v ... 85, 38, 89
Leak, Melling v ... ... 55
Leake v Robinson ... ... 494
Leapingwell, Page v ••• 49
Lechmere v Earl of Carlisle ... 132
Lee V Busk ... 160, 162
Lee,Darthe2v ... ...315
Lee, Ex parte ... ...410
Lee, Fonblanque v 281, 282, 286, 359
Leeming v Sherratt ... ... 840
Lees V Massy ... ... 494
Legge, Ex parte ... 412, 414
Le Neve v Le Neye ... ••• 611
Lewis V Collard ••• •*• 404
Lewis V Peake ••• 58, 59
Lewis V Bees 496, 497, 498, 601
Lewis and another « Smith & Boss $99
Lichfield, Ubich V ... 4M, 42d
Digitized by
Google
TABLE OF CASES CITED.
LidwoU, £oe v ... ... 496
Lightbome v WEyoj ... 99
LillvLiU ... ...206
Lister, liddv ... ...350
Llojd, Pennell v ... •.. 387
Locke V James ••. ... 247
Logan V Wienholt ... 184, 190
Long BerringtOD, The Ejog v ... 617
Long, Blachford v ... ... 426
Long V Long 94, 256, 257, 258, 262,
263
Lord, Li re ... ,.. 410
liOscombe v Winteringham 43, 48
Loveday's case 432, 438, 435, 436
Lovegrove, Parr v ... ... 496
Lovegrove, Smith v ... App. 36, 37
Low's Estate ... ... 268
Lncas, WUliams v ... ... 132
Lyle V Earl of Yarborough ... 496
Lymberry, Mason v ... ... 340
Lyne v Lyne ... ... 265
Lyster, Hubbard t; ... ... 16
M'Anley v Ckrendon ... 219
ATClennan, Fluester v ... 404
M'Clintock, Walpole v ... 520
M'Cttlloch V €rregory 496, 501
HODermot v Wallace ... 206
M'Dermott, Peyton v ... 216
McDonnell v Burnett ... 259
McDowell V Wheatley 281, 282, 286,
290, 291, 293, 358, 397, 398, 399,
400
M'Evoy, Lightbume v ... 99
M'Gee, Ex parte ... ... 416
M'Lityre, Jack v ... ... 496
M*Loughlen, Jack v ... 306
M*Neale, Li re ... 77, 82, 84
Maclean 9 Dunn ... ...511
Maddison, Benyon v ... 494
Maddison v Chapman ... 426
Hagee 9 Townsend ... ... 339
M^or p Barton ... ... 174
ffajor 1^ Lansley ... ...272
Malcolms v Charlesworth ... 268
Malone, Lanauze v ... ... 24
Mann v Stephens ... 35, 138
Manners, Brisick v ... 199, 204
Manning V Helps ... ...305
Maples V Pepper ... ... 58
Mapp V Elcock ... ... 227
Marchant, Parker « ... ... 143
Marchant, Roberts v 495, 500
Marlborough v Godolphin ... 340
Marriott, Raworth v ... 250
Marsden, Eyre v ... ... 340
Marsh, Carrv ... Jlpp. 36
Marshall, Bennett v ... ...362
Martin, Ex parte ... ... 410
Martin v Hinds ... App, 30, 38
Martin, Jones t; ... 184, 191, 198
Mason vClarke ... 115, 116, 121
Mason v Lymberry ... ... 340
Massy V Batwell ... ...100
Massy, Lees v ... ... 494
Massy vO'Dell ... 173,179
Match wick v Cock ... ... 485
Mather, Re ... ... 415
Melling v Leak ... ... 55
Meredith v Heneage ... 218
Messenger v Andrews ... 475
Metcalf V The Airchbishop of York 229,
230
Meux, Baggott v ... 271, 272, 276
Milbome, Doe v ... ... 101
Mildmay v Smith ... ... 457
Miller, Ex parte ... 413, 414, 415
Miller v Scare ... ... 410
Miller's case ... ...415
Milliken v Eidd ... ... 123
Mills, Farmer v ... ... 439
Milman, Morgan v ... ... 517
Miltown, Earl of, v Stewart ... 450
Minnethorpe, Gray v ... 314
Minshull, Bernard v 219, 223, 227
Mitchfijl, Steele v ... 99, 100
Mitford V Wicken ... 426, 430
Digitized by
Google
TABLE OF CASES CITED.
11
Moisej V HiUeoat ...
App.n
Nelms, Anster v
... 56
Molonj V ScoUard ...
603, 507, 509
Nelson v Brady
213, 216
Monck, Peacock v ...
270, 273
Nettlesbip, Clarke v ...
... 123
Monk V Sharp
... 404
Newbolt V Pryce
862, 367
Moore, Clarke v
... 79
Newcomen v Hassard
271, 274
Moore v Clegbom
... 230
Niblock, Garratt v ...
... 486
Moore, Field v
... 271
Nind, Currie v
... 128
Moore v Morris
... 271
Nixon V Hamilton ...
... 99
Moore, Orpen v
516,517
Nixon, Office v
dpp. 86, 88, 42
Morgan v Gnrly
79, 80, 96
Nixon, Scott v
64,66
Morgan v Milman ...
... 517
Nolan, Ex parte
... 418
Momington v Keane...
... 229
Nolan, In re
... 410
Morrall t; Sutton
... 426
Norbury, Lord, Drew v
619, 520
Morris, Egan v
... 164
Norris' case
... 415
Morris, Moore v
... 271
Norris v Cooke
...611
Morris v Morris
... 274
Norris v Wilkinson ...
199, 203, 204
...266
Northern Banking Company v Ro-
Morse v Morse
115, 116, 120
binson
... 389
Morton, Office v
App. 36
Northumberland, Earl of
f V Marquis
Moses, Goodright v ...
... 123
ofGranby
... 476
Mostyn, Townsend «...
...512
Norton v Turvill
... 276
Mott, Harris v
271, 274
Nott V Biccard
... 496
Moxhay, Tulk v
35, 87, 138
O'Brien, Roche v
... 100
Mucklow, Emery v ...
... 68
aConnell, Fitzgerald v
...259
Mulgraye, CoUyear v
... 180
O'DeU, Massy V
173, 179
Mundy v Mundy
... 64
aFayt; Burke
... 109
Munkittrick, Bidgeway t
f ... 116
Office V Gladstone ...
App. 36, 38, 39
Munro, Eyre v
184, 191
Office V Gregg
App. 86, 88
Mnrphy, Crosbie v ...
281, 290, 868,
Office V Morton
App. 36
398, 899
Office V Neal
App. 37
Murphy, Smyth v ...
... 213
Office V Nixon
j^. 86, 38
Mnrphy, Stevelly v ...
... 178
O'Flaherty, Hartley v
870, 378
Murray v Archbishop of Armagh
Oliver, Ex parte
310, 412, 416
Jpp. 41
Onions v Tyrer
...247
Murray, Bourke v ...
... 67
Ordich, Wood v
143, 144
Murray v Palmer
... 100
O^ReiUy, Re
... 339
Murtagh e Tisdall ...
... 268
Orpen 9 Moore
616, 617
MusgroYC, Playfeir »
456, 464
Osborne, Barlow v .. .
... 230
Muskerry e Chinnery
... 130
Osborne v Gough
... 284
Myers, Hewson t;
... 130
Owen V Flack
...495
Naish, Tourville v ...
151, 152
Page, Lane v
... 100
Neal, Freeland V
App. 36, 38
Page V Leapingwell ...
•... 49
Neal, Office v
App. 37
Paine V Wagner
... 116
Digitized by
Google
xu
TABLE OF CASES CITED.
Palmer, Murray v
... 100
Parker v Carter
... 123
Parker, DiUon v
... 476
Parker v Ince
... 61
Parker p Marchant
... 143
Parker v Smith
... 612
Parkin v Thorold
...495
Parr v Lovegrove
...496
Patten v Ponlton
... 247
Patton, Wallace v
...259
Payne 9 Trappes
... 247
Peacock v Monck
270, 273
Peake, Lewis v
58,59
Pearce v Edmeades
...206
Pearse & Protheroe, Ex fMurte 199, 203,
204
Pearson, Casamigor v ... 439
Pearson, Gray v 2 1 1, 212, 442, 492
Pegden, Goodlittle d. Peake « ... 375
Pennell v Lloyd ... ... 387
Penny, Briggs v ... 219, 226, 426
P^per, Maples v ... ••• 58
Perkins, Lord Bandcliff 9 ^.476
Parrott v Perrott ... 247, 250
Ferrotfs case ... 412, 413, 418
Perry, Heath v ... ... 206
Peters, Usticke v ... 476, 480
Peytai 9 M'Dermott... ... 216
Pfeilitaer 9 Hunt ... ... 299
Philoox, Burrongh 9 ... ... 340
PhiKpe, In re ... ... 525
PhilUps 9 Hunter ... ... 887
Pickard 9 Bretz ... 359
Pierce 9 Williams ... ... 58
PiUer, Inre ••• .••414
Pinchard's Trust ... 218, 219
Pitcher, Dnmmer v ... ... 476
PiU 9 Cholmondeley... ... 325
Plestero, Abraham 9 ... ... 386
Pluck 9 Digges ... 174, 305, 307
Plnmb, Collins 9 ... ... 36
Play&k V Mnsgrove... 456, 464
Fopham 9 Baldwin ... 512, 516
Portariington, Botler 9 96, 259
Portland, Dnke of^ 9 Bingham Jpp. 13
Potter 9 Browne ... ... 385
Potts, Hunter 9 ... 385, 387
Poulden, Attorney-General « ... 438
PonUqn, Patten 9 ... ... 247
Powell V Thomas ... ... 35
Power 9 Bailey . . . 272, 275
Power, Drew 9 ... 314, 325
Price, Curtis 9 ... ... 495
Probyn 9 Browne ... ... 385
Pressor 9 Edmonds ... ... 92
Pryce, Newbolt 9 ... 362, 367
Pulvertoft 9 Pulvertoft .•. 123
Pybus 9 Smith ... 271, 275
Bacster, Barnes 9 346, 348, a49i 350,
851, 352, 353, 354, 355
Badford 9 Southern ... ••• 496
Ramaden, Ex parte ... ••• 410
Randall, Jones 9 ... ..* 206
Randall 9 Willis ... ... 184
Randcliff, Lord, 9 Perkins ... 457
Raodfield 9 Randfield ... 426
Ranelagh 9 Ranelagh 156, 159, 162
Bawlings, Doe 9 •.. ... 94
Rawlings, Doe d. Phillips 9 ... 80
Rawlinson, Coleman 9 456, 457, 465
Baiworth 9 Marriott ... ... 250
RM V Steadman ... ... 227
Read, West V ... ...511
Re Applebee ... ... 247
Re Corbett's Trusts ... ... 343
Re De Rode ... ...247
Rees, Evans 9 ... ... 415
Rees, Lewis 9 496, 497, 498, j501
Re Fitzgerald ... ... 358
Reid, Wilson 9 ... ... 95
Reignolds, Turton 9 ... Jpp. 13
Reimers 9 Druce ... ..« 386
ReKeiUy ... 348,350
Re Mather ... ... 415
Renmon, Holmes v ... ... 387
Be O'Bfeilly ... ... 339
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Google
TABLE OF CASES CITED.
xui
Bestall, Sparks V
166, 160, 161
Bex V Deane
...466
Bex V Walters
... 416
Reynolds v Waring ...
... 612
Bhodes v Rhodes
... 158
Rieardo v Grarcias ...
... 387
Riccard, Nott v
...496
Rice, James v
...199
Richard t; Isaac
... 290
Rickards, Darbon v ...
...439
Ridgeway v Monkittrick
... 116
Ridg^way v Wharton
... 618
Ringrose v Branham ...
... 484
Rippon V Dawding *..
...272
Robello, Delmare v ...
... 862
Roberts v Marchant ...
496,500
Rabins, Boyd v
... 60
Robinson, Boyd v
... 59
-Robinson, Leake v •••
... 494
Robinson, The Northern Banking
Company 9 ... -. 389
Roche, Hall V ... ...467
Roche V O'Brien ..* ... 100
Roe V Hayley ... ... 79
Roe, Jackson v ••• ... 15
Roe V LidweU ... ... 496
Rogers, Ex parte ... 160, 161, 162
Rogers, In re ... ... 422
Rc^Lcby, Creswick v ... App. 26, 29
Bollmgj Doe d. Phipps v ... 259
Boublot V Boutell ... ... 290
Bonlston, Bradford v.«. ... 511
Bonndell v Breary ... ... 132
Beoae, Doe d. Gains v ... 362
Bontb, Blagrave v ... 826, 326
Soyal Bank of Scotland 9 Stein ...387
Boyse, Hamilton v ... ... 612
Busd V Rnsael ... 199, 203, 204
Bwsett V Clowes ... ... 2^
Bflssell V Jackson ... 219, 224, 227
Sabine, Bellamy v ... ... 268
SachevereU o Froggart ... 137
Sadleir, Fitzmaurice v ... 99> 128
Sadleir, Watson v ... ... 182
Sadlier o Biggs ... ... 32
Salisbury, The Marquis of,, Beau-
mont V ... ... 495
Salmond, Scott v ... ... 439
Salter, James v ... 306, 306
Sanctuary, Gbdson v ... ... 467
Sanford, Langham v ... ... 426
Saunders, Bustard v ... ... 116
Saunders, Jackson v ... ... 269
Savory « King ... ...108
Scholfield V Templar ... 15, 16
Schreier v Creed ... ... 36
Scollard, Molony v ... 503, 507, 609
Soott « Bargeman ... ...166
Scott V Bell ... 123,130
Scott V Clements ... ... 26
Scott, Doe d. Stephen 9 271, 276
Scott f^ Nixon ... 64, 66
Seott V Salmond ... ... 439
Seagrim, Gibson v ... 348, 361
Scare, Miller ir ... ...410
Selkrig v Davis ... 385, 387, 301
Sdl V Woswick ... .J. 887
Sewell, Commell 9 ... ... 387
Shannon t; Bradstreel ... 617
Shannon v Hodder ... ... 806
Shannon, Smith ... 78, 91
Sharps Monk v ... ... 404
Sheffield Gas Consumers Company,
Attorney-General v ... 86
SherraU v Bentley ... 426, 428
Shenratt, Leeming v ... ... 340
Shiel V Incorporated Society ... 305
Shippardson v Tower ... 425
Short d. Gastrell v Smith ... 247
Short V Ealloway ... ... 58
Short, Tickel v ... 814, 316
Skinner, Hyde v ... ... 79
Slatter r Slatter ... ...169
Slig<^ The Marquis of, Brown 9 79
Smith, Blakely V ... ...611
Smith V Budlanan ... ... 886
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ZIV
TABLE OF CASES CITED.
Smith « Campbell ...
... 362
Stibbert, Taylor v
511,512
Smith V Compton
... 58
Stockdale v Busby
... 362
Smith t; Coney
... 362
Stocken v Dawson
... 509
Smith, Doe d. Westmoreland t; ... 456
Stocker v Dean
... 138
Smith, Jones v
...511
Stokes, £z parte
...415
Smith V Lovegrove . . .
Jpp. 36, 37
Stokes, In re
...414
Smith, Mildmay v ...
... 457
Stoney, Kent v
... 80
Smith, Parker v
... 512
Stoughton V Crosbie
99, 100, 512
Smith, Pybus v
271, 275
Strickland v Aldridge
... 224
Smith & Boss, In re ...
857, 360
Stringer v Gardiner
...
... 362
Smith & Boss, Lewis & another v 399
Stronghill v Buck
.«•
... 100
Smith V Shannon
78,91
Stupart V Arrowsmith
... 314
Smith, Short d. Gastrell v
... 247
Sugden, Stelfox v
••«
... 439
Smith V Smith
180, 512
Sugrue, Crosbie v
...
...305
Smith, Wheeler v ...
... 218
Sumner v Thorpe
...
... 315
Smyth V Murphy
... 213
Sutton, Mofrall v
...
... 426
Snow, Steward v
... 247
Sutton V Tone
...
... 115
Snow, Wilbraham v ...
... 457
Swan V Holmes
...
... 206
Soames © Spencer ...
... 511
Taplin v Florence
...
... 39
Southcome t; The Bishop of Exeter 79,
Taylor, Bowman v
...
... 55
80
Taylor v Cole
...
... 456
Southern, Badford v ...
... 496
Taylor v Gorman
...
218, 216
Sparkes t; Bestall ...
156, 160, 161
Taylor v Haylin
...
... 325
Sparrow V Cooper ...
... 138
Templar, Scholfield
u ..
15,16
Spence, Browne v ...
Jpp. 27, 28
Taylor v Stibbert
...
511,512
Spencer, Soames v ...
...511
Taylor v Waters
...
38,39
Spencer's case
... 78
Taylor v Watson
..-.
... 35
Spicer v Todd
... 68
Tebbs, Walgrave v
...
... 219
Spooner v Weyman ...
... 200
Tennant, Hulme v
...
... 275
Spooner's Trusts
426, 428
Thick, Balls v
...
... 467
Squire, Wilson v
... 49
Thomas, Langley v
...
... 480
Stainbridge, Jolland v
... 512
Thomas, Powell v
...
... 35
Standen v Standen ...
... 362
Thomond, Wilson v
...
...611
Staunton v Vemey ...
... 17
Thompson, Hoyte v
•••
386, 387
Stead V Wilson
... 276
Thome, Haslope v
•••
282, 283
Steadman, Bead v ...
... 227
Thorold, Parkin v
...
... 495
Steele v Mitchell
99, 100
Thorpe, Frankfort v
...
... 503
Stein, Boyal Bank of Scotland t; 387
Thorpe, Sumner v
...
... 315
Stelfox t; Sugden
... 439
Tickel V Short
•••
314, 315
Stephens, Mann v
35, 138
Tidd t; Lister
...
... 360
Stevelly v Murphy ...
... 178
Tiemey, Lassence v
271,
339,340,342
Steward v Snow
... 247
Timmins, Morris v
...
...265
Stewart, Earl of Miltown
V ... 450
Tindall v Bell
...
... 58
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TABLE OF CASES CITED.
X7
Tipping V Aokerslej
382, 383
Walcott V Condon ...
268, 269
Tipping's Estate, In re
... 174
Walgrave v Tebbs ...
... 219
TisdaU, Mnrtagh V ...
... 268
Walker v Jeffreys
79,95
Todd, Spicer v
... 68
Walker v Walker ...
... 166
Toddington, The King v
... 517
Walker's case
... 410
Tone, Sutton v
... 115
Wallace » Patton ...
... 259
Tongue, Heap v
... 123
Wallace, M'Dermot v
... 206
Tourville v Naish
151, 152
WaUer, HUlary v ...
... 447
Tower, Shippardson v
... 425
Walpole V Cholmondely
... 247
Townly © Bolton ...
...206
Walpole V M'Clintock
... 520
Towns V Wentworth
... 156
Walters, Rex v
... 415
Townsend, Gardiner v
... 132
Warburgh v Tucker
... 58
Townsend, Magee v
... 339
Ward, Biggs v
... 218
Townsend r Mostyn
...512
Ward, Ex parte
... 410
Trant v Dwyer
... 79
Ward V Gray 115,
118, 121, 122
Trappes, Payne v
... 247
Ward, Jennings v
... 368
Trebecr Keith . ,..
'^tpp* 36
Waring, Reynolds v ...
... 512
Tredennick, Dunbar v
... 100
Warren, Law v
... 123
Tregoe, Hayter v
... 43
Waters, Taylor v
38,39
Trotter, Crawford v ...
116, 120
Waters, Williams v ...
...496
Tuck, Garrard v
... 65
Watson, Fitzpatrick v
... 215
Tucker, Warburg » ...
... 58
Watson V Sadleir
... 132
Tulk V MoThay
35, 87, 138
Watson, Taylor v ...
... 35
Tnllett V Armstrong
271, 273, 275
Weatherall t; Goring
... 137
Turvill, Norton V
... 275
Webb V Wools
... 218
Turton 9 Beignolds ...
App. 13
Webster, Johnston v
... 520
Twig, Britton v
... 375
Wedgwood v Adams
... 214
Twiss, York v
... 456
Wentworth, Towns ©
... 156
T^dall, Cohnore v ...
... 496
West, Calcraft V
... 40
Tyrconnell, Lord, v The Duke of
West V Read
... 511
Ancaster
... 100
Westcott V Culliford
... 184
Tyrer, Onions v
... 247
Weyman, Spooner v
... 200
Ulrich V Lichfield ...
426, 428
Wharton v Barker ...
... 494
Usticke V Peters
476, 480
Wharton, Ridgeway v
...518
Yaughan t; Ascue
App.n
W batman v Gibson . . .
53, 188
Yaughan e Marquis of Headford 1 1 6
Wheatley, McDowell v
281, 282, 286,
Yemey, Staunton v ...
... 17
290, 291, 293, 358,
897, 398, 399
Yemen, Lord Hardwicke
V ...314
Wheeler v Smith ...
... 218
Yicars Choral v Ayres
... 496
Whieldon, Grordon v
... 115
Yogel, Ex parte
... 414
W hite V Anderson ...
... 229
Wade, Averall v
370, 372
White, Deed. Barton V
... 484
Wade, Birch v
... 340
Whitehead v Hughes
... 68
Wagner, Paine v
... 115
Wicken, Mitford v ...
426, 430
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XTi TABLE OF CASES CITED.
Wickham v Hawker ...
... 89
Winteringham, Loscombe v
43,48
Wiekham v Wickham
... 495
Witts t> Boddington ...
... 340
Wienholt, Logan v ...
184, 190
Wood V Cox
... 219
Wilbraham v Snow ...
..• 467
Wood V Knox
... 269
Wik50x V Hannyngton
... 271
Wood » Leadbitter ...
35, 38, 39
Wild's case
... 116
Wood V Ordich
143,^144
Wilkinson, Norris v ...
199, 203, 204
Wood V The Copper-miners
Com-
Willett V Winnell ...
...368
pany
... 183
Williams v Armstrong
... 49
Woodgate t; KnatchbuU
466, 457
Williams v Chitty ...
143, 144
Woods, Bliss V
App. 11
Williams v Drury ...
... 404
Wools, Webb v
... 218
Williams, Keys v
199, 204
Woolston, Zouch v ...
... 110
Williams v Lucas ...
... 132
Worthington, Edge v 19S
1, 203, 204
Williams, Pierce v ...
... 68
Woswick, Sell v
... 387
Williams » Waters ...
... 496
Wright V Cadogan ...
... 272
Williams v Williams
... 218
Wright r Callender ...
...439
Willis, Douglas v —
...206
Wright, Jesson v
376, 376
Willis V Black
183, 190
Wright V Keily
... 214
WUlis, Randall v ...
... 184
Wyatt V Barwell
...516
Wills V Adey
... 284
Wynch's Trusts, In re
... ^75
Wilson V Hodges
... 449
Yarborough, Earl of, Lyle v
...496
WUson V Beid
... 95
York, The Archbishop of.
Met-
Wilson V Squire
... 49
calfv
229, 230
Wilson, Stead v
...276
York t» Twiss
... 456
Wilson V Thomond ...
...511
Young, Barkworth t; 183, 191, 192,
Wilton, Doe v
... 164
193, 194
Windham v Windham
...206
Young, Irving v
...314
Windus V Windus ...
426, 430
Young V Winter
... 68
WinneU, Willett v ...
... 368
Zichi, Marquis of Hertford v
197
Winter, Young V
... 58
Zouch V Woolston . . .
... 110
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CHANCERY REPORTS,
BEING A 8B&IE8 OF
CASES ARGUED AND DETERMINED
IN TBB
HIGH COURT OF CHANCERY,
COURT OF APPEAL IN CHANCERY,
llolls €omt, Janhb istahs Court
AND
COURT OF BANKRUPTCY AND INSOLVENCY
Court oC 9ppeal fit Cjbaitceri^*
In the Matter of the Estate of
JOHN WILLIAM BURMESTER, FARMERY JOHN LAW
and JAMES SADLEIR, Oumers and Petitioners ;
Continued in the names of
JOHN WILLIAM BURMESTER, WILLIAM CORY
and JAMES ANDREW DURHAM, Owners and Petitioners; iggO.
THOMAS JOSEPH EYRE, Appellant. Ch,App€aL
May 29, 81.
The following were the material facts disclosed by the pleadings s., being
and affidavits in this case : — In the years 1843, 1844 and 1845, Mr. ed^to B. and
Eyre* *^® appellant, had employed John Sadleir deceased, as his ^greed^wiiA b!
for a fixrther
advance, on a mortgage of rarioufl estates in Ireland. By the deed of mortgage, S.
covenanted that the lands of E., which formed part of the secority, were free iix>m
inenmbrances, and for farther assurance. No title was famished by S., nor search in
the registry in Ireland made by B. Before the entire advance was paid over to S.,
it was discovered that the lands of E. were sabject to a mortgage to E, B. there-
upon applied to S., who told him thatE. would release the Unds, on his (S.'s)
reqnest ; on which assurance B. paid over the residae of the loan to S. S., sabse-
qnently, by fraad, procured a release from E., of which release B. was made aware,
bnt was ignorant of the fraud. The fraud was discovered after some months had
elapsed. — Held, that B. was a purehaser for value of the release, as having been
procured by S., in pursuance of the covenants in the mortgage deed ; and that, being
i^orant of S.'s fraud, he was entitled to retain the advantage which the release had
given him.
VOL, 11. 1
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In re
BURMBSTER
StQlement.
2 CHANCERY REPORTS.
1860. solicitor, in the matter of a certain loan of £40,000, made bj
v^J^^ffl; Mr. Eyre to the Earl of Kingston, upon mortgage of the said EarFs
life estate in certain lands ; and of a certain other loan of £12,000
to Henry Smith, Esq., upon mortgage of certain estates of the said
Henry Smith ; and, by reason of the insufficiency of the securities
taken, or the misconduct of John Sadleir in that behalf, a great risk
had arisen that the said sums would be lost ; and thereupon John
Sadleir agreed to secure Mr. Eyre against any ultimate loss in
respect of the said loans, by executing a mortgage of certain lands
of the said John Sadleir, as collateral security to Mr. Eyre.
Accordingly, by indenture of mortgage of the 20th day of Octo-
ber 1854, after reciting that the said sums of £40,000 aiid £12,000
had been advanced by Mr. Eyre, by the hands of John Sadleir, and
that the said John Sadleir had agreed to secure him against any
ultimate loss, by reason of such advances, in the manner therein
provided, it was witnessed that the said John Sadleir granted to
Mr. Eyre and his heirs all the lands therein mentioned, including
the estate of Kilcommon and other lands sold in this matter, subject
to redemption in case the said John Sadleir should repay the said
sums so advanced as aforesaid, with interest at £6 per cent. And
by the said deed of mortgage the said John Sadleir and Mr. Eyre
duly constituted and appointed Mr. James Barron Kennedy as agent
and receiver of the rents of the said estates ; and it was by the said
deed of mortgage provided that the said James Barron Kennedy
should, out of the said rents, in the first place, keep down the
interest of certain incumbrances affecting the said lands, and, in
the next place, pay to Mr. Eyre an annual sum of £3000, in part
liquidation of the said moneys so advanced by and remainiog due
to him, and should pay the residue of the said rents to the said
John Sadleir. It was further provided that the said John Sadleir
should be at liberty to sell the lands, as therein mentioned, but
not for any less price than that for which the same had been
purchased by the said John Sadleir in the Court of Incumbered
Estates ; and that the produce of the sale should be invested as
a security, in place of the lands sold. This deed of mortgage was
duly registered in Dublin, on the 19th day of December 1854.
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CHANCERY REPORTS. 3
John Sadleir had become a director and the chairman of the Lon- 1860.
don and County Bank, in or about the year 1848, and, from that time, ^J^~^^'
in conjunction with various co-directors of the said Bank, he was bubbcesteb.
engaged in a great variety of speculations and adventures in many
parts of the world ; and the funds necessary for such speculations
were supplied by very large advances of money made by the said
Bank to him, as its chairman, in direct violation of the existing
laws of the said Bank, and upon very inadequate security.
Previously to the year 1863, the said John Sadleir had deposited
with the said Bank, as a security to cover his debt to the said Bank,
a certain deed, called *' the Chandos mortgage deed," by which cer-
tain estates of the Duke of Buckingham and the Marquis of Chandos
purported to be mortgaged to the said John Saldeir, to secure the
sum of £134,934. 8s. Id., as due to him ; and, afterwards, with the
permission of some of the parties connected with said Bank, he
obtained possession of the said Chandos mortgage deed indirectly,
and without the knowledge of the board of directors of the said
Bank, and raised a sum of £55,000 from other persons, which he
applied to his own use, having, nevertheless, undertaken to pay the
same to the said Bank, in reduction of his debt to them. He subse-
quently deposited with the said Bank a certain other deed, called '* a
declaration of trust of the said Chandos mortgage ; " and, afterwards,
clandestinely abstracted from the Bank the said deed of declaration
of trust, and raised upon the same a further sum of £10,000, which
he also applied to his own use, all which matters were well known
to the directors of the Bank.
In the month of May 1855, John Sadleir appears to have owed
the Bank £250,000 and upwards, upon loan and discount ; and, in
the month of June 1855, a further advance was made to him, of
£25,000, upon discount of a bill for that amount, drawn by the
Tipperary Joint-stock Bank, of which James Sadleir, the brother
of the said John Sadleir, was the sole managing director.
On the 24th of July 1855, John Sadleir applied to the Bank for
a further loan of £15,000, which was refused ; and, on the same
date, the Bank refused to honor his cheques, and closed his drawing
account, of which they gave him notice. James Sadleir, thereupon,
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4 CHANCERY REPORTS, '
1S60. and on the same 24th day of July, applied to the Bank for a loan of
.^,- Jl^ the sum of £15,000, upon the security of his promissory note for
BURKESTER. ^^^ amount at twenty-one days; and such advance was made to
him accordingly, but in fact for the urgent necessities of the said
John Sadleir, as was well known to the dii*ector8.
On or about the 26th day of July 1855, James and John Sadleir
proposed to the said Bank that they should advance, out of the
funds of said Bank, a farther sum of £95,000^ to meet the most
pressing demands on the safd John Sadleir, and that, to secure the
whole of the debt of the said John Sadleir to the said Bank,
including the said sum of £95,000, all the available property of the
said John Sadleir should be vested in trustees to sell ; and James
Sadleir then stated and represented that John Sadleir was entitled
to real estates in Ireland, to the value of £174,000, which were to be
included in such security ; and James Sadleir, as managing director
of the said Tipperary Joint-stock Bank, agreed to give the guarantee
of the said Bank for the repayment of the whole amount of the said
debt of the said John Sadleir to the London and County Bank,
amounting to the sum of £300,000, or thereabouts. To this propo-
sition the London and County Bank agreed, on the Slat of July.
Two, daya later, via., on the second day of the following month of
August, twenty deeds of conveyance were executed by the said
John Sadleir, bearing date respectively the 1st day of August 1855,
whereby he conveyed, or purported to convey, to John William
Burmester, Farmery John Law and the said James Sadleir, as
trustees, divers lands and estates in Ireland, including the said
estate and lands of Kilcommon, and the other lands included in
Mr..£yre*s deed of mortgage of the 20th day of October 1854;
and, on the same 2nd day of August, the said trustees executed
a declaration of trust, in writing, whereby it was declared that the
said trustees would hold all the said real and personal estate so
vested in them, in trust to sell, and, out of the proceeds^ to pay
all soma due by the said John Sadleir to the said London and
County Bank. It did not appear that, with respect to the said
estates, any statement of title to the same was ever made by the
said John Sadleir or the said James Sadleir to the Bank or ita
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CHANCERY REPORTS. 5
solicitors, or that the Bank, or its solioitors or agents, ever saw I860.
anj deed or dooument evidencing the title of the said John Sadleir y^
to the same ; or that they inquired whether the said John Sadleir bormestbr.
was in fact in possession of or in receipt of the rents of the said
Statement.
lands, or that any search or inqairj was made by the said Bank for
incumbrances or judgments affecting the said lands.
On or about the 10th day of August 1855, Mr. Stevens, of
the firm of Wilkinson, Gumey & Stevens, solicitors for the London
and County Bank, went over to Dublin, for the purpose of regis-
tering the twenty deeds; and Mr. James Barron Kennedy, who
was a member of the firm of Messrs. Morrogh & Kennedy, in
Dublin, was employed by the Bank to assist in the registry thereof.
Mr. Kennedy had acted as Mr. Eyre's solicitor in the matter of
the said mortgage of the 20th of October 1854, 'and had been
named receiver therein ; and» behig thus aware of the existence
of that security, he informed Mr. Stevens thereof; and Mr. Ste-
vens, thereupon, on or about the 13th day of August, wrote to
his said firm in London, and also sent a message by tel^raph
to John Sadleir, mentioning to both Mr. Kennedy's communication,
and desiring his partners to prevent the Bank parting with more
money until the matter was cleared up.
On the said 13th day of August 1855, John Sadleir wrote to
Mr. Eyre, who was then in Bath, a letter, as foUowa: —
•'London. Avgost 13th 1855.
'*' Mt dear Mr. Eyre — I suppose you have with you the indem-
nity deed signed by me, in which we both agpreed that a proviso
should be to the effect that I might substitute for the lands included
in the deed other lands^ or shares paying £5 per cent. / am tram-
ferring now the lands included in the dtd^ in order to enable me
to pay up all my shares in the Royal Swedish Railway, which is
Hkely to turn out a very valuable concern, and to provide for other
payments, such as calls on the East Kent shares I hdd, and other
matters ; and I want you to instruct J. B. Kennedy to prepare, at
my expense, such deed or deeds as may be requisite to carry out
o«v instructions according to the proviso in the indemnity deed.
My notioo is that, as I have to pay you £3000 a-year, and, as I
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6 CHANCERY REPORTS.
1860. shall be entitled to £3000 a-year on 12,000 Rojal Swedish shares of
^J^S^ £S each, folly paid up (and with coupons for the interest at £5 per
BUBiCESTER. ^^^ payable half-yearly), it is better for you, and also for me, to
have this certain means of my paying the £3000 regularly to you,
than I should lose the present 6pportunity of making a general
arrangement as to the mortgaged lands, which certainly enables me
' to have a very large stake in the Railway, which will have its first
opening in next month. If yon desire to have more property in the
indemnity deed than the £60,000 of Railway shares, paying £3000
a-year, I have no objection to have the Wall lands, as they are to
be included in the secunty for the Wall purchase-money (after
Moore's £15,000), also made liable under the indemnity ; and, if
you would prefer that the yearly payment by me to you should
be £5000, and not £3000, I shall be quite prepared to meet your
wishes in this particular ; for, certainly, by substituting the Railway
shares, paying £5 per cent., for the lands, I become enabled to pay
£5000 a-year far easier than £3000 without such an arrangement.
If I have not sufficiently explained this matter to you in this letter,
I shall go to Bath, and explain my position and plans to you more
fully. I hope you will be able to write to me a line by Tuesday's
post, to No. 1 1 Gloucester-square, for I am rather anxious not to let
the present opportunity slip ; and, from what I have heard this day,
I feel unwilling to delay the afl&ur. You might wish to refer to
J. B. Kennedy the task of carrying out the alteration in the indem-
nity, and the substitution of property according to the proviso in
the original deed, in a way which would be just and proper, as
regards our respective interests ; and, with that view, I think if you
sent him this letter, with your own written instructions, the business
could be done by him in a satisfactory manner. Of couse, before I
would expect you to sign any deed of release of lands, I should hand
you over the Railway shares, with the coupons for the dividends or
interest. I do not know whether you consider it unreasonable to
wait for the £1500 I am to pay, until I get my coupons paid at the
Royal Swedbh next month ; but if it is inconvenient to you to give
me until then, I believe I can have no difficulty in discounting the
coupons now at once, and so be able to pay in the £1500 to your
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CHANCERY REPORTS. 7
credit. If I have to go down to Bath oa Wednesday, to see you on I860.
Ch, Appeah
this indemnity basiness, I shall explain to you about Lord Chandos. V"-v^
In re
" I remain, my dear Mr. Eyre, yours sincerely, bubmester.
'* John Sadlieb."
On the following day (the 14th of August), Mr. Eyre wrote to
John Sadleir a letter in reply, to the effect that he did not perfectly
understand his proposition, but was willing to forward his views if
safe, and that he would send Sadleir's letter to Mr. Kennedy for
consideration ; which accordingly he did on the same day. On the
same 14th of August, and before Mr. Eyre*s letter had reached Sad>
leir, Mr. Wilkinson (of the firm of Wilkinson, Greene & Stevens),
having received Mr. Stevens' letter from Dublin, had an interview
with Sadleir, who informed him that the mortgage to Mr. Eyre need
form no difficulty, as Mr. Eyre would at once release at his request,
and that he had written to Mr. Eyre with reference to the matter.
On the 15th day of August, John Sadler sent by telegraph, to Mr.
Kennedy, a message as follows :-^*< Favourable letter from Bath,
which I send you. He also writes to you." And on the same 16th
day of August, Mr. Kennedy wrote and sent to Mr. Stevens, who
who was then at Killamey, a letter as follows : — ^' I got the follow-
ing message from London this morning : — * Favourable letter from
Bath, which I send you. He also writes to you.' As yet I have
not got Mr. Eyre's letter."
On the 15th of August, James Sadleir asked Mr. Wilkinson for a
cheque for £10,000 (part of the £95,000) then in his hands; and
also for another cheque for £15,000 (part of the same fund), for the
purpose of paying off the £15,000 promissory note of James Sadleir.
Mr. Wilkinson said that this money could not be paid until the mat-
ter of Mr. Eyre's mortgage was arranged ; whereupon John Sadleir,
who was present, stated to Mr. Wilkinson, that he had had a com-
munication from Mr. Eyre, undertaking to release the estates from
the mortgage; and in reliance on that assertion the two cheques
(constituting the then unpaid part of the £95,000) were handed
over.
On the same 15th day of August, John Sadleir wrote and sent to
Mr. Eyre another letter, which was as follows : —
Statement.
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SUitem£Mt,
8 CHANCERY REPORTS.
1860. "11 Gloncester-sqiiare, Hyde Park, London,
Ck^ppeai. " 16th Augnst 1855.
BURME8TSR. *' ^^ DEAR Mb. Etre — I am (}tiite satisfied that the ot>eration
of substitutiDg other security for the lands now included in the in-
demnitj deed should be according to what J. B» Kennedy may
consider right and fair as between us two. From the beginning to
the end, I have but the one object, and that is, to manage matters
so as that, whatever delays or annoyances you may have had to ex-
perience heretofore, no ultimate loss should at all eivents happen.
This change of security will greatly facilitate me in my efforts, with-
out, I trust, at all damaging your position. In fact whatever serves
me, in this respect, cannot, I believe, damage yon. The lands in-
cluded in the indemnity deed are worth, I suppose, about £106,000,
subject to mortgages to the amount of £46,000. I am looking to
recovering losses on foot of lands, by the gain on the Royal Swedish
shares ; and I think that in proposing to substitute for the indemnity
lands 12,000 Royal Swedish shares, producing £3000 a-year, and
agreeing to the Wall lands standing also as an indemnity, and in-
creasing the yearly payment to you from £3000 to £5000, I will be
carrying out an arrangement which must be of the two more favour-
able to your interests than the present one. The present arrange-
ment was the best I could offer and make at the time ; but I told J.
B. Kennedy at the time, that I would want to act on the proviso
for liberty to substitute securities, in order to carry out my own
plans for covwing and protecting myself against loss. You most
bear in mind that, after all, it may turn out that I will not have to .
make good a very serious loss, in re Kingston^ and that when the
poUcy for £4000, in re Smith v. Dennehy^ falls in, the loss in that
case will be lessened too. However, we shall see what view J. B.
Kennedy will take of the matter. Mr. William Eyre has not any
charge or claim on the Wall lands. He has obtained from me a
security on portions of the Cahir lands, and the other lands not in*
eluded in the indemnity deed \ so that what I propose is, that your
indemnity should attach on the Wall lands, subject only tq Judge
Moore's £15,000, and your own claim thereon. — ^I remain, my dear
Mr. Eyre, yours truly, " John Sadleir.*'
*.* To Thomas Etbb, Eeq."
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CHANCERY REPORTS. 9
On the I6th day of August, Mr. Kennedy received a letter from 1860.
John Sadleir, written by him on the 15th of August, suggesting that » -^ ^»
Mr. Kennedy should go to Bath, to negociate with Mr. Eyre the BURHfESTER.
proposed substitution of securities, and inclosing Mr. Eyre's letter
of the 14th of August. And on the 16th day of August, Mr.
Kennedy received from the said John Sadleir another letter, inclos-
ing a copy of a share in the Swedish Railway Company, and of the
charter, prospectus and reports of that Company. Mr. Kennedy,
having received such letters, wrote and sent to Mr. Stevens, who
was still at Killarney, a letter as follows : —
*' 5 Great Denmark-street, Dublin, 16th Angiist 1855.
'^ My dsar Sib — I have had letters from Sadleir, also from
Mr. Eyre, and I consider my best course is to go to Bath to-night,
imd arrange with Mr. Eyre as to the exchange, and for releasing^
his lands. I shall be back, I hope, on Monday, and meet you here.
I send you letters, and leave your bag and deeds with Mr. John-
ston. The parcel came to-day from Nicholas-lane^ but the deed I
want is not in it. I have written for it. — Yours truly,
•« J. R. Stevkhs, Esq." " J. B. Kennedy.
Mr. Kennedy had previously informed Mr. Stevens that an ex-
change of the securities so held by the petitioner was intended to
take place.
Mr. Kennedy left Dublin accordingly, on the I6th day of
August, and arrived in Bath on the 17th of that month. On
the 16th of August he sent the following telegraphic message to
John Sadleir : — " Dublin — To John Sadleir, Reform Club, London.
I go to Bath to-night, and will telegraph to-morrow to Nicholas-
lane* what I do. 1 hope to leave Bath Saturday morning." And
during his journey, Mr. Kennedy sent a second telegraphic mes-
sage to John Sadleir :—" Stafford— To J. Sadleir, Reform Club,
London. — To secure £5000 a-year there should be 20,000 shares
of £5 each ; four per cent, only stated on the share sent." And on
his arrival in Bath, on the said 17th of August, he received from
John Sadleir two telegraphic messages in reply, as follows : — " From
J. Sadleir, London, to J. B. Kennedy, White Hart Hotel, Bath—
• Where Messrs. Wilkinson, Gumey & Stevens had their office.
VOL. II. * 2 *
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10 CHANCERY REPORTS.
'I860. The shares to the amount you meBtioo can be given ; if not, other
Ch. AppwL
"^^^ ' property. Dargan's note for £12,000, due Ist May next, can be
BUBBCBeTES. given." From same to same : — ** If requisite, James will guarantee
Staument ^^® £5000 a-year; in May next, ten or twenty thousand <x>uld
be paid.'' Mr. Kennedy did not send any telegraphic message to
Nicholas-lane, inasmuch as, after his interview with Mr. Eyre, as
next hereinafter stated, he was unable to state that Mr. Eyre would
release his said security until the inquiries Mr. Kennedy was to
make were satisfactorily answered.
On the said 17th day of August, Mr. Eyre had an interview
with Mr. Kennedy, when Mr. Eyre agreed to the arrangement
proposed, subject, nevertheless, to the result of certain inquiries to
be made as to the line of Railway, and the value of the said shares ;
and Mr. Kennedy undertook to go to London, to make inquiry re-
specting the said line and shares. Mr. Kennedy accordingly pro-
ceeded to London, and met John Sadleir there, on the evening of
the said l7th of August, and handed to him certain queries in writ-
ing, as to the Railway and shares ; and, on the 1 8th of August the
said Mr. Kennedy and John Sadleir had an interview, and the
said John Sadleir then delivered to Mr. Kennedy answers in writ-
ing to the said inquiries, which answers Mr. Kennedy embodied in
a letter written by him to Mr. Eyre, on the same 18th of August,
recommending the acceptance of Sadleir's proposition.
On Monday the 20th of August, and not before, Mr. Eyre
wrote to Mr. Kennedy, according to a form inclosed in the said
letter, a letter as follows : —
" Bath, 20th Angnst 1655.
" Dbar Sis — Upon the terms stated in your memorandum of
the 18th instant, I will release the Irish estates of Kilcommon,
Skehana, Boggawn, Castlegrace and Clonmore, from the indenmity
given me upon them under the deed of the 20th of August 1864,
and I request you will prepare the necessary docqments for my
signature, — Tours truly, Thomas Etbb."
And it was only then that Mr. Eyre had finally determined to
accept Sadleir's proposal for a change of securities. However, Mr.
Kennedy, on his arrival in Dublin, on Sunday the 19th of August,
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CHANCERY REPORTS. 11
immediately had an iDterview with Mr. Stevens ; and, aasuming that I860.
Mr. Ejre would act on his recommendation, told Mr. Stevens that -l-^-^
the release would be executed, and, at his request, then wrote a bitbmesteIi.
letter, which, however, was dated the 18th of that month, and was
Statemeni.
as follows : —
" Great Denmark-Street, 18th Anguat 1855.
** Dbas Sirs — We have arranged with Mr. Eyre to release the
Kilcommon, Castlegrace and Clonmore estates, and hope to have
the necessary deed executed in a week or ten days. — Yours truly,
'^ MoRBOOH & Kennedy.
•* To Mesm. Wilkinson, Gubnkt & Stevens."
On the 13th day of October 1855, Mr. Eyre executed a certain
deed of re-conveyance, made between him of the one part, and John
Sadleir of the other part, and purporting to bear date the 5th day of
October 1855, whereby, after reciting the deed of the 20th October
1854, Mr. Eyre, at the request of the said John Sadleir, re-conveyed
all the lands therein comprised to the said John Sadleir, discharged
of the trusts of the said indenture of mortgage.
In this deed no consideration was stated, nor any reason given for
such re-conveyance. It was executed by Sadleir, in the office of
the solicitors of the bank in London, in presence of one of their
clerks and of Mr. Kennedy, and taken by Mr. Kennedy to Dublin,
for registratiod ; and Mr. Stevens deposed that, in the subsequent
November, being in Dublin, he had inquired and was satisfied that the
release was registered. On the same ISth of October 1855, Mr.
Eyre executed certain indented articles of agreement, purporting to
bear date the 6th day of October 1 855, and made between the said
John Sadleir of the first part, Mr. Eyre of the second part, and the
said jKmes Sadleir of the third part ; whereby, after reciting the said
indentures of the 20th of October 1854, and of the 5th October 1855,
and that Mr. Eyre had agreed, in lieu of the said mortgage, to accept
the securities therein mentioned, and reciting the delivery of the
said Swedish Railway shares, and reciting that, by virtue of a special
resolution of the said Railway Company, of the 26th of August 1855,
the said shares bore interest at £5 per cent, per annum, it was
witnessed that the said shares should be vested in Mr. Eyre, sub-
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12 CHANCERY REPORTS.
I860. ject to redemption on the terms therein expressed, and correspond^
■- V -^ ing to the terms contained in the said deed of the 20th of October
BURME8TER. 1854. And bj the said agreement the said John Sadleir covenanted
to convey, by way of mortgage and farther security, to Mr. Eyre,
certain lands called the Wall or Coolnamuck Estate, subject to a
certain other agreement of the 13th of May 1855, relating thereto, and
entered into between Mr. Eyre and the said John Sadleir, and in
which said articles were contained certain powers of sale, respecting
the said last mentioned lands; and by the said articles, the said
James and John Sadleir covenanted with Mr. Eyre for the payment
of an annual sum of jE5000, in liquidation of Mr. Eyre's demands ; and
it was declared, that any moneys received by Mr. Eyre, on foot of
the said promissory, note for £12,000, of the said William Dargan,
should be applied in liquidation of his said demands.
At the time of the execution of the said agreement by Mr. Eyre,
the said Swedish Railway shares, and also a copy of the said resolu-
tion of the 26th day of August 1 855, and the said promissory note
of the said William Dargan, were handed^over to Mr. Eyre by Mr.
Kennedy.
The intended mortgage of the lands of Coolnamuck was never
executed, nor was any payment of money ever made under the pro-
visions of the agreement of the 6th day October 1855. And it was
discovered by Mr. Eyre, after the death of John Sadleir, and not
before, and established by the evidence in this matter, that the
Swedish Railway shares 'were forgeries ; that no such minute or reso-
lution of the said Railway Company was ever made, as pretended, and
that the promissory note for £12,000, of the said William Dargan,
was also a forgery. It was also proved that in fact the Wall or
Coolnamuck lands were, previously to the date of the articles of
the 6th day of October 1855, subject to charges which exceeded the
value of such lands, and that the guarantee of James Sadleir was
wholly worthless.
By an indenture of the 7th day of September 1855, executed be-
tween the said John William Burmester, Farmery John Law, and
James Sadleir, of the one part, and the said 'John Sadleir of the
other part, after reciting the execution of the said twenty deeds of
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CHANCERY REPORTS. 13
the 1st of Aagost 1855, it was declared that the trustees should stand ^ Amieal
possessed of all the lands and premises thereby conveyed, upon trust ^"^li^^
to sell, and out of the proceeds to pay all incumbrances for the time BURiiESTEB.
being affecting the said landSj and upon trust, as to the residue or statement.
surplus of such proceeds, for the said John Sadleir absolutely ; and
by another deed, of the 8th day of September 1855, the said John
Sadleir declared a trust of the said residue so coming to him, and
that the same should be applied in discharging the sums due by him
to the London and County Bank, and to the said Tipperary Bank.
John Sadleir died, by his own hand, in February 1856, insolvent ;
and that no payment was made to Mr. Eyre on foot of the said
indenture of the 20th day of October 1854, except a payment of
£3000, made on or about the 4th day of December 1855, in pur-
suance of the term^ of the said indenture ; and it was believed
that the entire sums lent to Lord Kingston and Mr. Smith would
be lost.
On the dOth of June 1856, the said trustees presented a petition
to the Incumbered Estates Court, for a sale, among others, of the
lands included in Mr. Eyre's mortgage ; and Mr. William Cory and
Mr. Andrew Durham having been substituted for Messrs. Law and the
late James Sadleir as trustees for sale, the proceedings were carried
on in the names of the new trustees, and the lands sold. On the
ruling of the final schedule of incumbrances, on the 31st of October
1^9> Mr. Eyre, in pursuance of an objection previously filed by
him, submitted that, at the date of the declaration of trust, of the 7th
of Septembet 1855, his mortgage was in equity a subsisting charge
on the said lands, and a trust was, by the last-mentioned deed, de-
clared for the payment of the same, and that the said London and'
County Bank could claim nothing under the said last-mentioned
deed, or the deed of the 8th of September 1855, except the surplus
to which the said John Sadleir was entitled after payment of Mr.
Eyre's mortgage, of the 20th of October 1 854. The indenture of the
7th day of September 1855 was alone registered.
Judge Longfield, however, 'was pleased to order and adjudge —
** That the said release of the 5th day of October 1855 was void as
against any surplus coming to John Sadleir, but that the same was
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14
CHANCERY REPORTS.
1860. valid as regards the daim of the London and County Bank.** And
CA. AppeuU ^
— p ' it was aocordingly declared by the Court, that the objection of Mr.
BUBME8TER* Ejrc should be OYerruled with costs. Thereupon Mr. Eyre filed
Statement. ^^ petition of appeal, submitting thereby that Judge Longfleld's
order was erroneous, and ought to be reversed or varied, so far as it
declared the said deed of release valid, as regarded the claim of
the said London and County Bank, and so far as it overruled Mr.
Eyre's objection ; and that he ought to be declared entitled to a lien
on the proceeds of the sales of the lands comprised in the said in-
denture of mortgage, of the 20th of October 1854, according to the
rights conferred on him by that deed, as if the said indenture of re-
conveyance, of the 5th day of October 1855, had never been executed
by him.
The Aitamey-General (with whom were Mr. Rogers and Mr.
May)y for the appellant.
Argument. The question in this case is entirely one of equity, as neither of
the parties concerned has the legal estate in the lands, which are
now vested in the heir-at-W of John Sadleir. The Bank, in this
ease, does not fill the position of a purchaser who advances his
money on the fiiith of receiving an unincumbered estate as security.
At the time of the mortgage, their advances to Sadleir, and their
connection with him, had been sueh that they were obliged to take
anything he had to give diem as security for. the further advances
which, to save themselves, they were compelled to mi^e to him.
Tbey never attempted to aseertain, by search in Ireland, or by any
investigation of title whatever, what they were getting as security.
Li truth, therefore, whatever may be the form of the recitals and
covenants in their conveyances, in substance they took subject to
Mr. Eyre's mortgage^ and any other that might appear. They had
fall notioe, moreover, that, if Mr. Eyre released, it would be only on
getting valid securities in exchange. They must have known that
his release was subject to 'an implied condition that it should be
honestly obtained. But, in Dsust, they are mere volunteers, as
regards this release ; they never paid a shilling on the faith of it.
The great bulk of th^ money they paid without having taken the
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CHANCERY REPORTS. 15
ordiDarj precaution of inquiring into Sadleir's title, and, therefore, 1860.
in ignorance of the mortgage ; and then, notwithstanding notice, >J^JLS
paid out the remainder of their money, on a promise of Sadleir bubmester.
that he would obtain a release, and without any communication
with Mr. Eyre himself. It was not until long afterwards that
Mr. Eyre re-conveyed ; and, up to the moment of re-conveyance,
he had never bound himself to do anything. As far as they were
concerned, it was a purely voluntary act; and, so fiir were they
from acting on it, that they did not see the deed until after Sad-
loir's death, and they do not appear to have been even aware that
it was executed. They did nothing and gave nothing on the &ith
of this release. A person who has given no consideration cannot,
even though innocent, take advantage of a deed obtained by fraud :
Sehoifield v. Ten^lar{a). There is no authority for saying that
if a party buys subject to a mortgage, he can, without giving any
further consideration, avail himself of a release obtained by the
fraud of his vendor. In such case, the vendor must be considered as
the agent for the purchaser in the negociation of the release ; and
the latter would, therefore, be affected by the fraud. The neglect
of this Bank, in making none of the usual searches, disentitles them
to the consideration of a Court of Equity: Jackson v. Roe{b).
'*It would be against reason," says the Master of the Rolls, in
Hubbard v. Lyater (c), where there was a defence of purchase for
value without notice, '^to allow the protection of this plea to a
purchaser who had wilfully relinquished the security which the
statute has afforded him.**
On the subject of notice, they cited Sug. Ven. ^ Pur.^ p. 619,
and the cases there referred to.
Mr. Serjeant Lawson and Mr. Sullivan (with whom were Mr.
Brewster and Mr. Romney Foley\ for the London and County
Bank.
It is quite a mistake here to suppose jthat the Bank contracted
with Sadleir for a security on these lands subject to Mr. Eyre's
(a) 1 Johns. 185. (6) 2 Sun. & Stn. 472.
(c) 7 It. Eq. Rep. 560.
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In re
BURBfESTBB.
Argument.
16 CHANCERY REPORTS.
I860. mortgage. If they did, their case would stand on different grounds
s^J^fElS from what it rests on. They contracted, as the deeds show, for a
security on an unincumbered estate (save as to a specified mortgage).
Sadleir covenanted that the lands were unincumbered, and for fur-
ther assurance. As soon as the Bank, in the fair and regular
completion of this conveyance, discovered the existence of this
mortgage, they called on Sadleir, in pursuance of his covenant, to
procure a release ; and it was only on his express understanding to
do so forthwith that the remainder of the money was paid. How can it
be said that the Bank have not given their money for whatever
Sadleir procured for them in pursuance of that undertaking? They
are plainly purchasers of it for value. It is not necessary that the
consideration in such a case should be paid to the person releasing :
CobbeU V. Brook (a). The Bank, as is alleged by the appellant
himself, held themselves altogether aloof from the dealings between
Sadleir and Mr. Eyre ; and, in that respect, their case is quite
distinguishable from that of Templar, in Scholfield v. Templar.
There, the misrepresentation was made with the concurrence (no
doubt innocently) of the person who was to obtain the advantage
by it. Then, Immediately after the payment of the money, they were
assured, by Mr. Eyre's known solicitor, with whom they had been in
communication, that a release would be executed by Mr. Eyre;
and on that assurance, and relying on the release, they remained
quiescent ever after. It is impossible to say what their position
might have been, with regard to these moneys, if Mr. Ejrre had
refused to release, and they had proceeded to call th^m in. They have,
therefore, changed their position materially on the faith of his release.
He knew well, through his solicitor, that the release was wanted to
enable Sadleir to de^ with other persons ; and, if he intended that
there should be any such condition attached to it, with regard to
the validity of the new securities, as suggested at the Bar, he should
have so expressly stated at the time. Is it to be supposed that
everyone taking lands released under a proviso, such as was in Mr.
Eyre's deed, is bound to see to the title of the substituted securities ?
As for negligence, it is Mr. Eyre's own negligence, in taking this
(a) 20Beav.5a4.
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CHANCERY REPORTS.
17
great amount of shares without taking a single question at the I860.
Railway office, which has caused all the difficulty. .^tppm
They referred to Staunton y. Vemey(a)\ Joyce v. De Mo- bdrmesteb.
leym(b\
The Lord Chancellor.
The question in this case turns not upon the poiot of registry
search, or upon the &ct of notice of the incumbrance itself. It
comes simply to this ; if these Bankers have given consideration for
what they derive under this instrument, unless you show that they
had notice of the fraud in question, or that they were concerned in
the misrepresentation, what case do you make against them ? That
distinguishes their case from the case in Johmon^t ReporU. Here,
the London and County Bank had no notice whatever of the fraud ;
they are not parties in any way to the misrepresentation ; and the sole
and single question then is, have they given consideration for what
they got by virtue of this deed ? What they got was a discharge of
the incumbrance from the estate which they bought. They gave
eonsideration for the xsontract to effect that discharge, and for the
covenant for further assurance by John Sadleir, and all deriving
under him, ineluding Mr. Eyre. This agreement is carried out.
The consideration comes down to the completion of the transaction ;
and it is impossible to say that the consideration does not run
through the whole of it. Unless they can be fixed with fraud or
ausre^pesentation prior to the execution of the deed, their position
is unaffected. It would be inequitable in the highest degree to take
ftom them the protection which they got, in innocence of the frauds,
and upon the faith of which they paid their £95,000. The judg-
ment of the Court below must be affirmed, and with costs.
ArgwrnmU,
JudgmmU.
The Lord Justice of Appeal.
The grounds of my opinion, that the order of Judge Longfield
should be affirmed, have been partly stated in the course of the
acgument. They are very few and simple. The London and
(«) 2 Ed. 81, 85. (6) 9Ir, Eq. Rep.676; 8, a, » J. ft L. 69a
VOL. 11. 3
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18
CHANCERY REPORTS.
" 1860.
Ch. AppeaL
In re
BURME8TER.
Judgment.
County Bank are purchasers for value under this deed. They
advanced £95,^00 on the mortgage executed to them by John
Sftdleir, purporting to convey to their trustees the lands free from
incumbrances. The money advanced by ' the Bank was the consi-
deration as well for the conveyance of the lands as for the protection
which the covenant of the deed bound John Sadleir to afford, when-
ever it was found to be necessary. It was in substance and effect
a remedy for restoring to the Bank as much of the money as should
be equivalent to any undiscovered incumbrance, if, when discovered,
John Sadleir failed to have the estate discharged from it. This was
a continuing right on their part, and an obligation on him quite
independent and irrespective of the time, whether earlier or later,
that the £95,000 should be advanced^ When, therefore, the incum-
brance of Mr. Eyre was discovered, the liability of John Sadleir to
have it released, or to pay an equivalent in damages, became imme-
diate and absolute. To discharge it, he applied to Mr. Eyre, who
declined to be himself the medium of negociating the proposed sub-
stitution of other security for that he was asked to relinquish, and
committed the whole affair to his solicitor. In the deception prac-
tised on him, and the consequent loss incurred by Mr. Eyre, there
is no pretence that the Bank participated ; they required only what
they were entitled to, a release ; and John Sadleir, under the obli-
gation of his covenant, obtained it for them, thus performing one
alternative, and avoiding the other, of making them restitution or
compensation in damages. The act of John Sadleir was only what
he was legally bound to do. The fraud he practised to accomplish
it was wholly unknown and unsuspected by the Bank, and, as pur-
chasers, they have obtained what they were entitled to, and have
paid for, and have an indisputable right to retain.
Order.
It is ordered by this Court that the petition of appeal be,
and the same is hereby, dismissed with costs ; and, accord-
ingly, it is further ordered that the order of the Landed
Estates Court, bearing date the 3l6t day of October 1859»
be, and the same is hereby, af&rmed. And it is further
ordered that the deposit of £10 lodged with the Registrar
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CHANCERY REPORTS.
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1860.
Ch, Appeal,
In re
be paid to the said John William Burmester, William Cory,
and James Andrew Durham, in part payment of such costs.
And it is further ordered that the said appellant do pay bubmester.
to the said John William Burmester, • William Cory and
James Andrew Durham their further costs of this appeal,
beyond the sum of £10, when same shall be taxed and
ascertained.
Court of Appeal Hearing Book,/, 371.
Judgment,
In re the Estate of GEORGE JOHN LANAUZE.
1859.
Nov. 22,
This was an appeal, on behalf of the owner, from an order of Judge a testator de-
Longfield in the Landed Estates Court, ruling that certain legacies ^^^ ^ ^
bequeathed by the will and codicil of John George Lanauze were ^]J^oldinb^l
charged upon the lands sold in this matter. ^' «'?au*"h*'
John George Lanauze, appellant's uncle, was, in his lifetime, pos- ^7 property
and worldly
estate what-
ever," to a trustee, upon trust, in the first place, to preserve the sidd chattel interest
by payment of head-rent and renewal fines. He then bequeathed certain pecnniary
legades, and, among others, a smn of £100 to the trustee; *'and as to, for and
concerning all the residue of my interest in my said lands, and as to, for and con-
cerning the residue, similarly, of m^ other personal estate and effiscts, subject to the
hereinbefore trusts, I hereby give, beaueath and devise all such residue of my inter-
est in the said lands, as also SH such the residue of my personal estate and ejects, in
trust for my eldest son." The testator then charged the lands and the residue of
his personal estate with certain sums for younger children. The testator then de-
dared that, in case he should die leaving no son, but leaving an eldest or only
daughter, then he devised all his interest in said lands, and ail the residue of his
personal estate, in trust for such daughter, with remainders over ; and he directed
*' that ail the intermediate rents and profits of my said lands, as well as of the resi-
due of my said other personal estate and effects, which shall accrue, arise or be made
out of both said funds," subject only to the provision made for testator's wife by
their marriage settlement, and to his debts and funeral expenses, '* and to the seve-
ral legacies hereinbefore enumerated," should go to the trustee. In 1846, Master
Henn had made a report, afterwards confirmed by a decree in Chancery, by which be
found that the legades under the will were not chaiged upon testator's mterest in
the lands. — Beld, that, upon the true construction of the will, the legades were not
charged upon the lands.
Held alio, that the legatees were bound by the Master's report
The Judges of the Landed Estates Court are bound by a final decree of the Court
of Chancery.
In re Kelfy (9 Ir. Chan. Bep. 103) commented on.
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Statement*
20 CHANCEBT REPORTS.
1859. sessed of a chattel leasehold interest, under the Bishop of Eilmore,
CA« Appetd,
'^«— -V — -^ in portions of the lands of Kildrumliftrtin and Eilnaleck, subject to
In re
ILAJSAUZE, A moiety of a yearly rent reserved thereout. By his marriage set-
tlement, dated the 25th of April 1832, he assigned to the trustees
therein named the lands of (amongst others) Eildrumfartin and £il-
naleck, and all his estate and interest, benefit of renewal, claim and
demand whatsoever, in and to the same, upon trust (subject to the
payment of the rent and renewal fines, and to a life estate for him-
self) that, in the event (which actually happened) of his own death
in his wife's lifetime, and of the death of all the issue of the mar-
riage unmarried and under age, then the wife should take a certain
annuity out of the lands during her life, and, immediately upon his
death in his wife's lifetime, then upon trust, subject to the wife's
annuity, for such persons as he should by deed or will appoint.
John George Lanauze subsequently made his will, dated the 19th
of February 1834, whereby, after confirming to his wife the provi-
sion made for her by the deed of settlement, he devised all his
interest in the lands of Eildrumfartin and Eilnaleck, and certain
other lands called Tonelyon and Coolkill, to his trustee and friend
William 0*ReilIy, his executors and administrators, upon thist,
^* First, that he (and, during the continuance of this present trust
they idso) shall, from time to time, and at all times necessary, pre-
serve my interest in all my tenant rights, by duly paying the head-
rent due by me, and coming out of all my lands, to the proper
landlords able to give good acquittances for the sum and sums
respectively paid to them on the account of such head-rent ; and,
secondly, that he and they, my said trustees, shall duly pay and
satisfy, to the proper persons, all fines which shall have become due
to, and remained claimable by, such persons respectively, for enti-
tling my said trustee and trustees to obtain renewal or renewals of
the interest in any of my said lands ; and that also they shall duly
jpay all impositions, taxes and duties, of what degree or nature
soever, lawfully and accustomarily levied out of all or singular my
sidd lands, and likewise all other necessary and usual burdens affect-
ing the same ; and, as a mark of my willingness to invite the said
William O'Reilly to make this trust not unworthy of his acceptance.
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CHANCERY REPORTS. 21
I empower him to take and receive, from each and every one of my 1859*
tenants of my lands, or to retain for his own nse, as fees for HBceiv- ^-^ v ■ ^^
In f€
ing my rents, the sum of one shilling for every pound sterling paid u^nau^b.
as rent hy each one of my tenants. I nominate, constitute and
hereby appoint my said friend William O'Reilly to be sole executor
of this my last will and testament ; and I hereby give and bequeath
unto him a sum of one hundred pounds sterling, as a mark of my
confidence and faithful regard : also to my friend Edward Plunkett,
of Dunowen, I give and bequeath the sum of two hundred pounds
aterling. I give and bequeath to Peter Keogh, a servant now em-
ployed in my business, a sum of thirty pounds sterling. I give and
bequeath to Mathew Cumisky, my maternal uncle, a sum of one
hundred pounds sterling ; and as to, for and concerning all the
residue of my interest in my said lands, and as to, for and concem-
' ing the residue, similarly, of my other personal estate and effects,
but still subject to the hereinbefore trusts by this my last will
declared, I hereby give, bequeath and devise all such residue of
my interest in said lands, as also all such the residue of my personal
estate and effects, in trust for my eldest and yet unborn son, hfs
executors and administrators ; but I charge hereby the said lands,
and the said residue of my said other personal estate and effiscts
(if, besides such eldest son, I shall have also a younger child who
shall be living after my death), with the sum of five hundred pounds
for such younger child ; and, if I shall beget two such younger chil-
dren, I hereby charge my said lands, and my said residue aforesaid,
with the sum of eight hundred pounds, the same to be equally
divided, share and share alike, between them, when payable under
4hk my will. And, if I shall leave me surviving more than two
younger children besides an eldest son, then (whatever may be the
number of such younger children above such two) I charge my said
interest in the said lands, and the residue of my said other personal
estate, with the sum of one thousand pounds sterling, the said sum
to be ^vided, share and share alike, amongst such younger children,
being more than two in number, when their legacies shikll become
demondable and payable to them under this my will ; and, more-
over, I mean, order and 4iUrect that, in the event of my leaving two
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CHANCERY REPORTS.
1869.
Chn Appeal.
In re
I.ANAUZE.
Statement.
8Qch younger children, as herein aforesaid, as only issue, besides an
eldest son, the share or legacy so meant for either of them dying
unmarried and under the age of twenty-one years shall go over and
survive to the other of them such two younger children ; but it is,
notwithstanding, my will, and I hereby also ordain that, in the
event of my younger child or children so dying unmarried and
under full age (when the number of such younger children shall
be more than two), no surviving younger child shall, by the death
of any one or more of them, under such full age and unmarried, be
. entitled to receive, in any manner, more than the sum of five hun-
dred pounds ; but any possible surplus above such ^ve hundred
pounds, for any such child as last mentioned, shall not be raised, but
shall sink in my interest in said lands for their relief and ease. And
further, if it happen that I shall die leaving no son, but shall die
leaving an eldest or only daughter, then in trust, as to all such my
interest in the said lands, and all the residue of such my other per-
sonal estate and effects (charged in like manner as herein aforesaid),
for such eldest or only daughter, her executors and administrators ;
and, if I shall leave no daughter me surviving, or if all daughters
me surviving shall happen to die severally under the age of twenty-
one years and unmarried, then, and in such event, I give, bequeath
and devise my interest in my said lands, and all the residue then
remaining unadministered of my said personal estate and effect, to
my nephew George Lanauze (the appellant), eldest son of my late
brother William George Lanauze, deceased, when and so soon as
my said nephew George Lanauze, aforesaid, shall attain the age of
twenty-one years ; but, if he the said treorge Lanauze shall die
without legally attaining such age, then I give and devise my inter-
est in my said lands, as also all the residue of my said other personal
estate and effects, to that child, be it male or female, of my first
cousin George Lanauze (now residing in the East Indies), son of the
late Andrew Lanauze, of Carrigan, in the county of Cavan afore-
said, who shall first attain the full age of twenty-one years ; but I
will, at the same time, and direct hereby, that all the intermediate
rents and profits of my said lands, as well as of the residue of my
said other personal estates and effects, which shall accrue, arise or be
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Statement.
CHANCERY REPORTS. 23
made out of both the said funds durmg all the period, number of 1859*
years and time which shall intervene between my said nephew's first w y ■/
becoming the next devisee of my said property, by virtue of this my lanauze.
will, until such his death (if he shall so chance to die under the age
of twenty-one years, as lately supposed), and also all the intervemng
profits of the same lands, and of all the residue of my said other
personal estates, deriving, intervening or in any manner accruing
between the time of the death under age of my said nephew George
Lanauze, and the coming to the age of twenty-one years as aforesaid -
of the eldest child of my said first cousin George Lanauze, now
residing in the East Indies, that all the said profits, subject only to
the provision made for my said wife, Elizabeth Lanauze, by the said
deed of settlement so executed upon, or previously to, our marriage,
and to my debts and funeral expenses, and to the several legacies
hereinbefore enumerated, shaU go and belong to, be retained, taken
and recovered by the said William O'Reilly, to and for his proper
use and benefit." Then followed a provision, empowering the trus-
tee to make leases during the minority of such person as should, for
the time being, be entitled under the will to the lands thereby
devised.
The testator made a codicil to his. will, dated the same day,
whereby, in addition to the legacies bequeathed by the will, he
bequeathed £60 to George Hines.
The testator died on the 16th of January 1837, leaving his
widow, Eliza Lanauze, afterwards the wife of Charles Malone, and
one only child, a daughter, Mary Anne Lanauze, who was thereupon
entitled, under the will, to said leasehold interest in the lands.
On the 5th of February 1842, an order in Chancery was made, in
the matter of Mary Anne Lanauze a minor, whereby it was referred
to the late Master Henn to take an account, amongst other things,
of the debts, legacies and funeral and testamentary expenses of said
testator, and of the charges and incumbrances affecting his property.
Under the order of reference, four of the legatees, namely, William
O'Reilly, Edward Plunkett, Peter Eeogh and Mathew Cumiskey,
filed charges, claiming their respective legacies ; but George Hines
did not put forward any claim. Charles and Eliza Malone, on
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CHANCERY REPORTS.
1859^
CA. Appeal.
In re
I.AIIAUZK.
behalf of the minor, denied the fact of said several legacies being
any charge or lien on said lands of Kildruinfartin and Kilnaleck, or
tbd income thereof.
On the 5th of November 1847, the Master made his report, and
thereby stated that he had examined into the matters referred, in
tbe presence of the respective claimants ; and the Master thereby
found, amongst other things, several judgment and other debts
affecting the testator's property, and also that the principal and
arreflf of interest were due in each case of the legacies, except that
Qjk George Hines, inasmuch as no claim had been laid before him in
regard thereto; and the Master directed the surplus of all future
it^Mits to be applied in liquidation of testator's debts, the several
legattees under the will not being, in his opinion, entitled to any
portion .of said rents.
The several legatees took objections to the Master's report, which
was, notwithstanding^ confirmed by an order of said Court of Chan-
cery, of the 10th of July 1848, in the same matter, made upon due
notice to all of the said legatees, none of whom Intervened on the
OfDcasion, or ever took any further proceedings for the purpose of
disputing the decision of Master Henn, or took any steps whatever
for recovery of their respective legacies, until after an absolute order
for sale of the said lands had been made in the Incumbered Estates
Court.
The minor, Mary Anne Lanauze, died on the 24th of February
1851, under agia and unmarried, whereupon the bequest in petition-
er'a favour came into effect.
^ After the death of the minor, her mother, Eliza Malone, continued
in possession of the lands, and in receipt of the rents and profits, in
deroigation of the i^^lant's rights; who, on the 2nd of June 1853,
filed a cause petition against Eliza and Charles Malone ; and, by a
d^retal order in the cause of Lanauze v. Malone^ dated the 2nd
of Pecember 1855, the petitioner was declcu^ entitled to the
Imids. The appellant entered into possession, and, on the 25th of
November 1856, filed his petition in the Incumbered Estates Court
for a faje of said lands, for discharge of the incumbrances affecting
them. Th». lands were sold on the 18th of January 1859; and, on
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CHANCERY REPORTS.
25
the settliDg of the final schedule, Judge Longfield made an order,
declaring, amongst other matters, that the legacies bequeathed to
William CReillj, Peter Eeogh, Matthew Cumiskej and George
Hines were charged upon the lands told in the matter ; and it was
ordered that the legacies should l)e paid, with the arrears of interest
for six years prior to the filing of the petition.
From this order the present appeal was now brought, upon the
ground that, upon the true construction of the will of John George
Lanauze, the legacies in question were not charged upon the testa-
tor's chattel interest in the lands ; and also, upon the ground that the
legatees were bound by the report of Master Henn, confirmed by the
decree of 1848.
1859.
Ch. Appeal.
^- f ^*
In r«
LANAUZE.
Stattment.
^Ir. BrewiteTy Mr. J. E. Walsh and Mr. TudoTy for the appellant.
It is admitted that, if a testator makes a common fund of his
real and personal property, and, aftor bequeathing legacies, then
bequeaths the residue of the whole common mass, every portion of
that mass is subject to the legacies. But the testator, in the present
case, has adopted an entirely opposite course ; for he has carefully
kept the t#o funds distinct throughout the entire will. In such a
case, a money le^tee cannot have recourse, for payment of a legacy,
to a chattel real specifically devised : Davis v. Gardiner (a). The
testator here had a perfectly legitimate reason for dividing his pro-
perty into two classes, and keeping them distinct. He had already,
by his marriage settlement, made provision for his wife, but not for
children, and he was now by his will about to provide for his child ;
and it is not likely to have been his intention that his child should
not have his ob&ttel interest in the lands until the legacies had been
satisfied out of it, a course which might have left her penniless. But
this matter wad In fact res judicata. The report of Master Henn in '
1846, confirmed by the decree of 1848, was the decision of a Court
of competent jurisdiction, by which the parties are now bound.
Arffumeni.
Mr. Sherlock and Mr. Bamill, for Myles William O'Reilly, the
personal representative of the executor.
(a) 2 P. W. 187.
VOL. 11. 4
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CHANCERY REPORTS.
1859.
Ch, AppeaL
In re
LANAUZE.
Argument,
Mr. F. Walshe and Mr. Purcell, for Greorge Hines» one of the
legatees, and —
Mr. John J7. Richards^ for another legatee.
The legal intention of the testator was to charge the legacies
upon his interest in the lands: Greville v. Brown {a) \ Scott v.
Clements (b). Master Henn's report is not an estoppel. If the
Judge in the Landed Estates Court thought the decision of the
Master erroneous, he was not bound by it, nor are his legatees:
In re Kelly {c). — [The Lord Justice of Appeal. That was
the case of a decree prp confesso. — The Lobd Chancellor. It
would tie the most inconvenient thing possible if, after a report such
as that made by Master Henn in this case, the parties come forward
now to establish their claims].
The Lord Chancellor.
Judgment. j^ my opinion, it is very plain, on the construction of this will,
that the legacies are not charged upon the chattel interest, which
has been specifically devised. This was a particular case. The
testator was possessed of a chattel interest in land, and also of other
property of a purely personal character ; and he devised the chattel
interest specifically^ for a distinct purpose, in the first instance, and
then he devised the rest to a trustee, William O'Reilly, upon trusts
which he specified ; and the very first of those trusts was, not to
admiilister all the propeii;y in one common fund, but to preserve all
his interests in his tenant rights, by payment of^ head-rent due by
him, and to pay the renewal fines, and all taxes and duties levied
out of the lands, and so on. He then gives the trustee £5 per cent,
on the rents received by him, thereby showing that he meant hip to
possess this chattel interest free from the^ legacies. Having done
that, he then nominates the same William O'Reilly his executor, and
gives him a legacy of £100, as a mark of his co;ifidence and regard,
and he then bequeaths the legacies now in question. Now, if the
' other legacies were charged on the chattel interest, so was the
legacy bequeathed to O'Reilly ; and it certainly would have been a
(a) 5 Jut., N. S., 849. (6) 8 Ir. Chan, Rep. I.
(c) 9 Ir. Chan. Rep. 103.
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CHANCERY REPORTS. 27
strange inconsistency on the part of the testator to direct O'Reilly to
1859.
CA. Appeal,
In re
preserve the chattel interest in the way th^ testator has directed,
and then to give him a legacy charged on that same chattel interest, lanauze.
which would enable him to sell the property for the payment of that . -^
legacy. All through his will the testator has taken care to keep a
distinct line between his chattel interest and the rest of his personal
property. He then devises the residue of his property in the follow-
ing way :-t" And as to, for and concerning all the residue of my
interest in my said lands, and as to, for and concerning the residue
similarly of my other personal estate and effects, but still subject to
the hereinbefore trusts, by this my last will and deed, I hereby give,
bequeath and devise all such residue of my interest in said lands, as
also all such the residue of my personal estate and effects, in trust
for my eldest and unborn son ; " but he charges *' the said lands, and
the said residue of my said other personal estate and effects " with
certain charges for younger children, which charges he calls legacies.
Kow, if the testator supposed that the legacies given by his will
would have been charges on the chattel property, there would have
been no need for him to give this specific direction as to the charges ,
or legacies for his youngeir children. There is not a single clause in
[this will making this chattel interest into a common fund. Master
Henn's decision is an authority for the opposite view. I am, for my
part, quite satisfied to abide by the older decision of the ofiicer of
this Court, although it does happen that a Judge of the Landed
Estates Court has come to a different conclusion. It is said that
the decisions of the Court of Chancery in minor matters are not
binding. Perhaps that may be true, in a certain sense, inasmuch
as the minor would not be bound, if he did not choose to adopt the
decision. Lord Manners refused. In re Burke a minor (a), to allow
executors, on motion^ to account before the Master for property
which the testator had bequeathed to minors, on the ground that
the account so< taken would not be binding on the minors, there
•being no suit pending in Court to which they were parties. But,
if the minor does adopt such decision, it then, I apprehend, becomes
binding upon all parties ; and, unquestionably, \^here parties have
(a) 1 B. & B. 74.
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CHANCERY REPORTS.
1859.
Ch, AppeaL
^ In re
JLANACZE.
Judgment.
thus come before the Master^ and have acquiesced in his decision,
wliich the minor has also adopted, it would require a strong author-
ity to induce me to hold that they are not bound thereby.
It has been urged that the Judges of the Landed Estates Court
have power to investigate a decree of the Court of Chancery, and to
refuse to act upon.it, if they come to the conclusion that it was
erroneous ; and the decision in Kelfy v. Kelfy (a) has b^n cited in
support of that proposition. Kelfy y. Kelfy does not decide any
such thing, and, if any idea to that effect exists, the sooner such an
idea is dispelled the better. The decree in Kelfy v. Kelfy^ in the
Court of Chancery, was a decree />ro confesso^ which b always of an
ex parte character ; moreover, it was a decree for a receiver ; but
no sale of the lands was ordered. The Commissioners of the
Incumbered Estates Court had full power to construe that decree,
and tliat was all they did; it was merely the case of putting a
construction on a decree. The Loud Justice of Appeal, in his
judgment, confined himself to that point. There is a great 'deal of
other matter in the report, which may perhaps be considered as
extra-judicial, and by which I certainly should not feel myself
bound, if it means that the Judges of the Landed Estates Court
have authority to examine and go behind a final decree of the Court
of Chancery. The 42nd section of the Incumbered Estates Court
Act (12 & 13 Via^ c. 77) plainly shows that where there is a final
decree of the Court of Chancery, which would be binding on the
parties in this Court, that decree would be equally binding on the
Commissioners of the Incumbered Estates Court. I do not think
that, upon such a decree of the Court of Chancery, any question
can even be raised in the Landed Estates Court, except for the
purpose of construing that decree ; and I am quite sure that, in
Kelfy V. Kelly ^ the Commissioners of the Incumbered Estates Court
did not mean to do anything more. The ruling of the Court below
must be reversed.
The LoBD Justice of Appeal.
I entirely concur in the construction which has been given to the
(a) 9 Ir. Chan. Bep. 103.
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CHANCERY REPORTS.
^9
will by the Lobd ChanceLuor; and I shall only add that, with 1859.
respect to the case of Keliy y. KeUij, all that was dotoe by the ^^'^PP^^{'
decree of the Court of Chancery was to appoint a receiver, and
the Incumbered Estates Court construed tliat to be a decree for
a sale. This Court merely reversed the construction which the
Commissioners of the Incumbered Estates Court had given to the
decree of the Court of Chancery.
Ih re
LANAUZE.
JadymenL
In re HARDING'S ESTATE.
1860.
Bt indenture of 20th of July 1765, Theobald Wolfe demised to By deed of
William Harding the lands of Derryhiney otherwise Castlefarm, at ed a'perpetual
a yearly rent, for three lives renewable for ever. charge "of
By deed of 20th of July 1769, made between the said William ^ut^f^^
Harding and Henry Harding his eldest son, of the first part, George Mm Vot *tfii^
Harden and Anne Harden his daughter, of the^second part, William HT^* P®n>^
Harden and Thomas Gee, of the third part, being the settlement That deed was
^ lost ; but It ap-
executed on the marriage of said Henry Harding with said Anne P«&red> from a
memorial
Harden, said William Harding (among other things) granted a per- thereof, that A
had graoted to
petual yearly rentcharge i)f £134 of the then cuiTcncy of Ireland, to* B and C, for
be issuing and payable out of said lands. tioned in i&e
The petition of appeal stated that this deed was not forthcoming, rentchai^e of
and could Jiot be procured, notwithstanding diligent search ; but that ifs^g^^out^f
it appeared, from the memorial thereof, that William Harding, for The"reit-"^
the considerations therein mentioned, had granted and confirmed c^i?J8® ^«f
° paid by the
onto William Harden and lliomas Gee (trustees), for the uses and owners of the
lands from
purposes in said deed mentioned, u yearly rentcharge of £134, for 1769 down to
ever, to be issuing out of the said lands. . petition was
presented to
tlie Landed
Estates Court for a sale of the rentcharge. — Held (oyerroling a decision of a J^dge
of the Landed Estates Conrt), that the memorial, coupled with eTidence of the pay-
ment of the rentcharge down to 1861 1, was sufficient evidence of a perpetual subsist-
ing rentcharge, so ais to enable the Court to sell.
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CHANCERY REPORTS.
1860.
Ch. Appeal,
In re
HARDING.
Statement.
William Harden, one of the trustees in the deed of 1769, died on
the 11th of August 1779, and Thomas Gee, the other trustee, died
in 1785.
By articles of agreement, dated the 9th of July 1792, and exe-
cuted on the marriage of William Harding, the eldest son of said
Henry Harding, with Miss Elizabeth Holmes, made between said
George Harden, of the first part, said William Harding, of the
second part, said Elizabeth Holmes, of the third part, and Peter
Holmes, jun., Alexander Holmes, Samuel Middleton and William
Poe, of the fourth part, it was, among other things, recited, that
said William Harding was entitled to said rentcharge, which .was
therein described as "the perpetual rentcharge of £134, chargeable
and issuing out of said Castlefarm of Derrihiney ; " and same was,
with certain lands therein mentioned, settled to the use of said
William Harding for life, with remainder, subject to a jointure of
£200 a-year for G^id Elizabeth, to the use of William Poe and
Samuel Middleton, for a term of 200 years, the trusts of which term
were thereby declared to be to raise, in the manner therein men-
tioned, a sum of £2000, as portions for the younger children of said
marriage. There was issue of this marriage an eldest son, George
Harding, and eight younger children, of whom the appellant was
one.
William Harding, who was the grantor of said rentcharge, and
owner of said lands whereon same was charged, and who regularly
paid said rentcharge during his life, by his will, dated the 1 3th day
of March 1773, devised all his estate in said lands to his second
son, Jonathan Harding, and died previous to the year 1777, leaving
said Jonathan surviving, who thereupon entered into possession of
said lands, and thenceforth during his life regularly paid the. rent-
charge. He died in 1815, leaving Jonathan Harding his eldest son
and heir-at-law, who thereupon entered into and continued, and was
at the time of this appeal, in possession and receipt of the rents and
profits of the lands, and had regularly paid the rentcharge. By his
marriage settlement, dated the 18th of July 1816, the lands in ques-
tion were conveyed to the use of Jonathan Harding for life, with
remainder, subject to a jointure, to the use of the issue of the
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CHANCERY REPORTS. 31
marriage, in such shares and proportions as he should by deed or 1860.
Ch. Appeal.
wUl appoint. — — V '
In re
By deed of appointment, dated the 27th day of March 1834, harding.
which recited the last mentioned settlement, and the power given « "J .
thereby, Jonathan Harding appointed one undivided third part of
the lands to the use of Frances Harding, his daughter, and her
heirs, for ever, and thereby declared and appointed *' that the only
incumbrance to be paid out of said third part of said lands thereby
appointed shall be, one-third of an annuity or yearly rentcharge
of £134 late currency, now affecting and charged on said lands.'^
The^rentcharge had thus been regularly paid by the owners of the
lands from the year 1769. ,
From the year 1777 to the year 1815, the lands were held by
Jonathan Harding,^ second son of William Harding, the lessee in
said lease, and grantor in the deed of 1769, as owner in quasi fee,
and were not, during that period, affected by settlement, but de-
scended to his eldest son, Jonathan Harding, as his heir-at-law.
A petition having been presented by Peter Holmes Harding, the
appellant, to the Landed Estates Court, for sale of the rentcharge,
for discharge of the incumbrances affecting it. Judge Dobbs, on
the 14th day of May 1860, made an order declaring that there was
not sufficient evidence that the rentcharge of £134 was then a
subsisting rentcharge, inasmuch as the memorial of said deed was
the only evidence of its contents laid before the Court; and
it appeared that the rentcharge was not then a charge on the
lands, having expired on the death of the survivor of the grantees,
William Harden and Thomas Gree ; and the Court declined to ap-
prove of the title to the said rentcharge as a good title, until further
and sufficient evidence should be produced, that the same was then a
subsisting- rentcharge on said lands.
From this order Peter Holmes Harding now appealed ; on the
grounds, first, that the memorial of the deed of 1769 was good
secondary evidence that a perpetual yearly rentcharge of £134 was
granted by said deed, and was thereby charged on said lands. Secondly,
that the memorial, coupled with evidence of the uninterrupted
receipt of the rentcharge, from the execution of the deed of 1769 to
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CHANCERY REPORTS.
1860. the time of presenting the petition, hy the persons claiming under
« vJ^.^£!!L the deed, was good ; secondary evidence of a perpetual rentcharge
having been thereby created, and of such rentcharge being still sub-
sisting.
In re
HARDING.
Staiemmt^
ArgtimenU
Mr. Serjeant Lawson and Mr. E. M. Kelly ^ for the appellant
Under the 43rd section of the Landed Estates Act (21 and 22
Vic. c. 72) the Court had clearly jurisdiction to sell. The memorial
of the deed of 1 769» coupled with the evidence of payment of the
rentcharge since then down to tlie present time, made by parties
whose interest it was to resist this claim, is ample evidence thfX it
was a perpetual rentcharge, still subsisting. Sadlier v. Biggs (a)
is in point. In that case. Lord Cran worth in his judgment said
(p. 455) : — *^ It appears to me that there are the most satisfactory
circumstances tending to show what the rights of the parties are :
these are, long enjoyment, the same dealing with the property for
a very great period, during the whole of which it was the interest
of one party to resbt that which, nevertheless, he from time to
time performed."
There was no appearance in support of the order of the Court
below.
The Lord Chancellor. .
Judgment. ^^ ^ clearly a mistake tOi say that the memorial is the only evidence,
for the payment of the rentcharge during so long a period is cer-
tainly evidence also. We are of opinion that there is evidence in
this case for a perpetuiEd ^subsisting rentcharge, quite sufficient to
warrant the Court in aelling. The order of the Court below must,
therefore, be reversed. . . ,
The Lord Justice of Appeal concurred,
(a) 4 H. L. C. 435.
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CHANCERY REPORTS. 33
1859.
Chancery,
MALONE V. HARRIS.
(In Chtincery,)
June 3, 8, 16.
This case came before the Court upon a cause petition and affida- ^^® owners of
a theatre, by
vits. The following were the material facts of the case: — By deed bearing
date in 1839,
letters patent of the 16th of May 1820, made in pursuance of made for yaln-
26 G. 3, c. 57 (Ir.)^ the Crown empowered Henry Harris to estab- tion, covenant-
lish a theatre in Dublin. Henry Harris proceeded to erect a theatre' to certain d^
in Hawkins'-street in the city of Dublin ; and by deed of the 4th ^^^ p^^
February 1822, he assigned to William Moore and William Lau- lege of free ad.
•^ ' ^ mission to the
rence Bicknell the Hawkins'-street premises and the letters patent, th'totre. The
petitioner waa.
upon trust to secure the payment to George Bicknell of two an- entitled, as one
of the deben-
nuities of £700 and £300 per annum respectively, which were therein tore holders, to
granted. New letters patent -were subsequently obtained, on the the deed of
surrender of those of the 15th of May 1820, and the new patent and sequenthr* bst
the Hawkins'-street premises were duly vested in Samuel Beasley and ^i^[ ST"^'
William Laurence Bicknell, in trust to secure the said annuities to ^P***^*!?^' be-
came lessee of
George BickneD. «he theatre,
' with notice of
On or about the 1st of November 1820, Henry Harris, in order to the deed of
1839. — ire%
.raise the sum of £10,000, proposed to issue fifty debentures for that the peti-
£200 each, such debentures to be chargeable upon the theatre, the entitled specip
patent, and the theatrical property, to carry interest at the rate of f^^ agaiMt
£3 per cent, per annum, and to confer on the holder of each deben- [hep^egeof
ture a right to a free ticket of admbsion, transferable- at the free admission
^ ' created bv the
commencement of each season. Many of such debentures were deed of 1839.
accordingly issued. In 1825, Henry Harris, by deed, conveyed all Suuemenu
his interest in the theatre, &c., to trustees for the debenture holders.
This deed contained a schedule of the debenture holders, amongst
whom the petitioner was included as holder of one. In 1826, the
petitioner purchased a second debenture, and received a certificate
as entitled to the benefit of the two.
VOL. 11. 5
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CHANCERY REPORTS.
1869.
Chancery.
Statement,
On the 3l6t of May 1839, in consequence of difficulties which had
arisen respecting the debenture holders, their rights and priyileges,
a deed was executed, of that date, between Henry Harris of the first
part, the representatives of the said George Bicknell of the second
part, the said Samuel ^Beasley and William Laurence Bicknell of
the third part, George WUliam Bicknell of the fourth part, John
William Cole of the fifth part, and the debenture holders who
should execute the same of the sixth part. The petitioner was one
of the executing debenture holders. By this deed the debenture
holders released all claims for interest on their debentures ; and in
consideration of this it was provided that the holders of debentures
should have a right to free admission to the theatre for themselves,
' and should also have a right to issue certain tickets for free admission
for others.
The respondent, John Harris, obtained a lease of the theatre
from the representatives of Greorge Bicknell, with full knowledge
of the deed of 1839 ; and on the 24th of September 1854, he issued a
circular by which he required the debenture holders to produce
their debentures for inspection, in order that the names of the holders
might be registered.
The petitioner alleged that he had lost his debentures, and was
consequently unable to produce them. The respondent then refused
to permit the petitioner to exercise any of the privileges of a de*
benture holder, and the petitioner brought an action in the Court
of Queen's Bsnch against the respondent for such refusal, which*
terminated in a vei*dict and jtldgment for the respondent. The
petition prayed for a declaration that he was entitled to the two de-
bentures and the privileges flowing from them, and that the re-
spondent might be restrained from obstructing the exercise of the
rights conferred by deed of the 31st of May 1839, on the petitioner,
as a debenture holder.
Mr. Hughes, Mr. Robinson and Mr. Purcell, for the petitioner.
Argument, ^^ ^^^^ ^^ remedy at Law, considering the form of this deed and
the title of Harris. The debenture or scrip itself could confer no
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CHANCERY REPORTS.
35
right of entry on anyone. Taylor v. Watson (a), as explained and
modified by Wood v. LeadbiUer {b\ Duke of Devonshire v. Eglin {c\
and Powell v. Tkomas (d)^ show how the Court will assist a merely
eqnitable right grounded on acquiescence. The respondent himself
has neyer disputed our right, provided we produce the particular evi-
dence of it which he requires. In the year 18399 great pains were
taken by the then lessee, with whom the present respondent is in
privity, to find the real owners of the debentures, and the peti-
tioner's right was then admitted. There has been, therefore, a con-
tinued user of this right during all this time ; and the i*cspondent
admits that on his purchase he knew of the claim, and of the deed
of 1839» by which the owners of the legal estate in the theatre
covenanted that the petitioner and persons situated like him should
have a right of entering. Such a covenant will be enforced in
Equity, whether at Law it runs with the land or not : Tulk v. Mox-
kay{e).
1859.
Chancery,
Argmuni,
Mr. Brewster and Mr. Exham^ contra.
In this case the question between the parties is concluded by the
decision in the Common Law Court. The principle of Tulk v.
Moxkay does not apply. That certainly does decide that, in a
certain class of cases, this Court will give relief to a covenantee,
without reference to the question whether at Law his covenant would
run with the land or not : but these are all cjtses where there is a
stipulation with the owner or lessee of certain property, that certain
neighbouring property shall be or shall not be used in some parti-
cular way, as in that very case of Tulk v. Molehay (f)^ where the
agreement Was to keep a square garden in a neat state ; or the cases
of Whatman v. Gibson (g), Schreier v. Creed (h\ and Mann v.
Stephens (i), where there were covenants respecting building. These
depend on the injury to the covenantor being incapable of compen-
sation by damages, and the right confeiTed being much in the nature
(a) 7 Taont. 874. (6) 13 M. & W. 83a
(c) 14 Bcav. 530. (<0 6 ^^' 300.
(0,2 PbiL 774; S. C. 18 Law Jonr., Ch^ N. a, 83.
092Phn.777. 0^)9SiiiL 196.
(A) 10 Sim. 85. (0 15 Sim. 879.
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CHANCERY REPORTS.
1869.
Chancery.
ArgwmeiU.
of a covenant. It is not, however, laying down the rule too broadly
to say that where damages will compensate, as they will here, for
the loss is only the price of admission, this Court will not interfere.
The contract here is so merely personal, that it is not a case for
specific performance : Attorney-General v. The Sheffield Gas Con*
sumers* Company (a) ; Keppel v. Bailey (b) ; Collins v. Plumb (c).
The Lord Chancellor.
Judgment. The claim of the petitioner in this salt is not to realise a pecuniary
demand. This has been expressly relinquished ; the suit is alto-
gether confined to the assertion of the right of free admission to the
Theatre Boyal for the petitioner and others, under his orders, by
virtue of the deed of 1839, referred to in the petition. The re-
spondent is not a party to this deed ; he is not in privity with the
petitioner, either by estate or by contract, and the petitioner has
failed to establish his alleged right at Law, which has been dis-
affirmed in the action. His present demand is, therefore, consequent
on the disaffirmance, not on the establishment, of a legal right By
the judgment at Law he is now concluded in the several matters
which were expressly put in issue in the action ; the findings of the
jury and the judgment of the Court of Queen's Bench are matters
of record, and not open to be controverted. How then could I de-
clare the petitioner to be the owner and proprietor of the debentures,
or make any other declaration of right, in defiance and denial of the
judgment at Law ? Supposing, however, that this barrier could be
removed, and that, on the true construction of the; deed of 1839» I
might hold that the personal right of the petitioner was secured by
covenant, can I say that this covenant is so binding in Equity on
the present respondent that I could graitt the relief sought by the
petitioner ?
It could not be said that there is to be found in this deed
any covenant running with the land on which the theatre had
been built. Has any equity been fastened on the premises by the
lessors of the lease under which the respondent derives ? In my
(a) 3 De G., M. & Gor. 320. (6) 2 M. & K. 547.
(c) 16 Ves, 454.
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CHANCERY REPORTS.
37
opinion there has not ; the privilege conferred, and the provi-
sions by which such privilege is secured, are simply personal, and the
respondent onght not to be bonnd by obligations which he has not
contracted to fulfiL The cases which were cited on behalf of the
petitioner, with a view to famish a principle for my guidance, do
not seem to me to be at all applicable to the facts of this case. In
one of them, The Duke of Devonshire y. Eglin(a)f there was a
complete executed agreement, which had been made for valuable
consideration, the benefit of which had been enjoyed for upwards of
ten years, and one party could not be allowed to defraud the other
of the advantage of the contract. Equity will sometimes mature
partial into complete performance, and will not allow what has been
done in good faith to be undone against good faith. Where the
parties cannot be restored to their original relative position, neither
party will be allowed to rescind the contract, against the will and
to the prejudice of the other. , Where part performance ought to be
completed, complete performance^ ought not to be rescinded. The
case of Powell v. Thonuu (b) is open to a like comment. Indeed
there is a class of cases well known, in which a person who may be
said to have encouraged an act to be done cannot afterwards be
allowed to interfere with the enjoyment of what he has thus deli-
berately sanctioned ; he shall not derogate from the just and full
effik^t of that acquiescence, which must be supposed to have been
intended, as it was calculated, to induce the doing of the act, which,
when done, is complete and irreversible.
It occurred to me, after the case had been argued, that it
was deserving of consideration whether the doctrine of Tulk
V. Moxhay{c)y and the cases of the same class, might not be
applicable, and I brought these under the notice of the Bar,
so as to afford an opportunity for any comment which might
seem proper. I am well satisfied that a Judge should never decide
a case on any ground not noticed at the Bar, nor on any authority
which he may have discovered, without giving the Counsel in the
cause the fullest opportunity of offering such observations' as they
think the matter may require. I derived much assistance from the
(a) 14 Beav. 530. (6) 6 Hare. 300. -
(c) 2 PhiL 774.
1859.
Chancery,
Judgment,
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38
CHANCERY REPORTS.
1869*
Chancery,
Judgment,
comment of Mr. Brewster on the class of cases to which I have just
adverted, and to which exclusivelj lie confined Iiimself in the second
argument which I heanl. These cases establish this, that there may
be an equity affecting the land and flowing out of a covenant, which,
through the medium of notice, may affect the conscience of a party
who would not be bound at Law Ity privity of estate or of contract.
The reason of this rule of Equity is explained by Lord St. Leonards
in the Treatise on Vendors (a).
In tlie well-known judgment of Lord Brougham, in Keppel v.
Bailey {b\ an instructive exposition is given of the doctrine of
binding an estate by covenants ; in connection with this, the valu-
able comment of Lord St. Leonards should be read. It is not
by reason of notice simply and merely that a covenant is made
to bind in Equity; there must be an equity so annexed to the
land that the covenant becomes obligatory on the conscience of
the proprietor of the estate. A party deriving under the propri-
etor^ with notice of the covenant, ^ill then be restrained by a Court
of Equity from doing an act which would leave the party under
whom he so derives exposed to an action for breach of the cove-
nanty and especially so where, from its peculiar nature, damages
would not afford an adequate remedy. But, in the present case,
it may well be asked, where is the covenant in the deed of 1839»
by which an equity is annexed to the premises demised to the
respondent by the trustees?
The debentures originally issued were founded on a two-fold
right. Tliere was the repayment of the sum advanced, with interest
in the meantime; there was the right of free admission to the
theatre by tickets. This latter claim is what is now sought to be
enforced. It originated in what was supposed to be the law, as
decided in Taylor v. Waters (e), a case subsequently questioned on
several occasions, but at last deliberately overruled by the well-
considered decision of the Court of Exchequer in England, in Wood
V. Leadbitter {d). The right of admission is but a license to enter
on the premises of the licenser ; there is not any grant of an interest
(a) Vol. 3, p. 485. lOth ed. (6) 2 Myl. & K. 617.
(c) 7 Taunt 374.
(lO 8 M. & W. 838; see also Hewitt v. Isham (7 Exch. 77).
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CHANCERY REPORTS.
in Uie subject of the license. It was stated by Mr. HugheSy on
behalf of the petitioner, that his case would be concluded at Law
by Wood v. Leadbiiter. If so, where is his equity to be found ?
If tliis be a license to enter upon the premises, in which it grants
nothing by way of interest, but is simply a license for pleasure,
there is nothing to attach an equity to tlie premises in tlie occu-
pation of the respondent. I agree with Mr. Hughes^ that at Law a
license only has been conferred or secured under t]ie covenant of
Mr. Bicknell. It purports to be assignable ; but it seems to me
neither to be assignable nor transferable. In ShephercTs Touch-
Mione (vol. 1, p. 239) it is said: — *' Licenses and authorities are
grantable at first for the lives of the parties, or for years ; but the
grantees of them cannot assign them over." In accordance with the
decision of Taylor v. Waters^ it was supposed that the privilege
would be quite as lasting as the debentures, and might be as readily
transferred; and the deed of 1839 deals with this privilege as a
right in perpetuo belonging to the debenture holder, his representa-
tives and assigns. There is a case in the Year Book, 1 1 Hen. 7,
f. 86, which is cited in Wickham v. Hawker (a), in which it is said,
of a license to a man and his heirs to come and Iiunt in the park of a
licenser, that this must be by deed, " for a thing passes by the license
which endures in perpetuity." But, in Com. Dig.^ tit. Chase H, 1,
it is shown, hy a reference to Manwood^s Forest Law^ that such a
license implies a right to killing and carrying away the game which
might be hunted, and thus, in reference to the subject-matter of the
license, it is coupled with an interest. In the present case, there
seems to be nothing on which the license can operate so as to confer
an interest in the subject-matter. It is simply a right of free entry
for pleasure, granted for pecuniuy consideration ; and so the case is
governed by Wood v. LeadbiUer, and especially as that case is
explained in Taplin v. Florence (b). Tlie distinction should always
be noted between a mere license and a license either expressly or
impliedly coupled with an interest A further distinction is import-
ant, between a license to do an act on the land of the licenser, which
should be granted by a deed, and a license to do an act on the land
of the party to whom such license is given, which act he might have
(a) 7 M. & W. 79. (6) 10 C, R 744.
1859.
Chancery.
V— V— ^
MALONE
V.
HARSIS.
JudgimmU.
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40
CHANCERY REPORTS.
1859.
Chancery.
Judgment.
done without the Ucense, were it not for some easement connected
with the property of the party who has given the license. The
general rule is that sucli a license, though given hy word only,
when acted on cannot be revoked ; but in anywise, where the with-
drawal or revocation of the license would amount to a fraud on a
licensee, a Court of Equity will interfere. A license may confer a
right in the nature of an easement ; and, in the learned treatise of
Messrs. Gale S^ Whatley^ p. 10, it is stated that ''Many personal
rights which, in their mode of enjoyment, bear a great resemblance
to easements, as, for instance, rights of way, may be conferred by
actual grant, independently of the possession of any tenement by the
grantee ; but such rights, though valid between the contracting par-
ties, do not possess the incidents of an easement. In case of disturb-
ance of a personal right thus given,' the remedy would appear to be
upon the contract only." The case of Caicrqft v. West (a), which
relates to this theatre in some degree, sustains the proposition that,
as a licensee, the petitioner has no locus standi in a Court of Equity.
It was admitted, by the Counsel for the petitioner, that no prece-
dent could be found for the relief sought under such circumstances.
I would not be deterred by the absence of precedent, if I could dis-
cover a principle clearly established, and capable of being safely
applied to the admitted facts before me. But I think it would be
without precedent, and against principle, to give the relief required
by the petitioner, who must resort to the covenant^in the deed of
1839 for whatever relief he can obtain ; in this Court, I can give
him none.
It is not necessary to advert to other views of the case, nor to say
whether the respondent might not resist this claim, as in substance
a suit for specific performance ; or on the ground of the great incon-
venience and hardship to which he might be exposed, if such a
claim as that which has been put forward by the petitioner should
be allowed.
On the broad principles which I have stated and explained; I
think I am bound to dismiss this petition ; and of course I dismiss it
with codts.
(o) 2 J. & L. 123.
Beg. Lib. 26,/. 51.
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CHANCERY REPORTS. 41
1860.
Chancery.
DALY V. THE ATTORNEY-GENERAL and others.
June 15.
The Rev. Skeffington Preston, by his will, bearing date the 16th A testator.
being j^ossess*
day of June 1843, after reciting that he was possessed of certain ed of £4000
stock, be-
bonds for the respective sums of £1428 and £1500, and of a sum of qaeathed
£4000 old £3^ per cent. Government stock, gave and bequeathed an indiyidnaL
the said securities, and all money due thereon, to James Daly, after- remainder he
wards Lord Dunsandle, and the Hon. Bowes Daly, on trust, to pay Jj^^^^^^f ^^
the yearly income thereof to the testator's two sisters, share and ^«>te8tant
share alike, during their lives, and to the survivor of them djuring I*eter*s parish,
' ^ ' *^ and another
her life; and, after the death of the survivor, he declared that the ^1000 for the
use of the
pecuniary legacies in his will mentioned should take effect (save school attach-
. edtotheEpis-
some small pecuniary legacies, which were to be paid within six copal chapel
in B.-street.
months after his decease). He then bequeathed to Bowes Daly The chapel in
£2000 of the said stock ; and he left and bequeathed, for the use of,Q^ school at.
the Protestant school belonging to the parish of St. Peter's, in the B.^^et^ww
city of Dublin, the sum of £1000 of said stock; and he left and p^^.J^^^J^^
bequeathed, " for the use of the Protestant school attached to the ^^*^' ^^ ^
gard to the
Episcopal chapel in Upper Baggot-street, Dublin, the sum of £1000 second £1000,
the will show-
of said stock." And all the remainder of his property he gave and ed a general
'^ ^ '' ^ charitable in-
bequeathed to his sisters, and the survivor of them, for life ; and, tention, which
might be exe-
after the decease of the survivor, he gave it to Bowes Daly ; and he cated cy pres,
appointed the said Bowes Daly and James Daly executors of his Protestant
will. On the 23rd of January 1844, the testator died; and the said Peter'spiuTsh;
will was afterwards duly proved by the executors. It appeared that fJJ^^' ^ JJ^
there was, at the testator's death, and had been for a long period ^^^^ ^^ set-
previously, and continued to be at the time of the filing of this accordingly.
The costs,
petition, a Protestant school, for the education of the parishioners down to and
of St. Peter's parish, in connection with the parish church of St. hearing,^ or-^
Peter's. There was also an asylum or institution in Upper Baggot- p^douU)f the
street, for the reception of penitent females, and, in connection ^^g*^°® j. J^^
reference to be
borne by the fund.
VOL. 11. 6
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CHANCERY REPORTS.
1860.
Chancery*
N- , »
DALY
v.
ATTORNBT-
OENEBAL.
Statement.
therewith, an Episcopal chapel ; and it appeared that the testator
was in the habit of attending Divine Worship at that chapeL There
was another Episcopal chapel in Baggot-street. This chapel, and
the institntion with which it was connected, were vested in certain
trustees, under the provisions of a certain deed of trust, bearing
date the 18th day of February 1835. The institntion was supported
partly by subscriptions, and partly by the pew-rents of the ohoreh,
but principally by the industry of the inmates of the institution* Ko
school, in the proper sense of the term, was attached to or con-
nected with the chapel or institution.
The present petition was filed by Mr. Bowes Daly (Lord Don-
sandle having died), sobtnitting that the bequest for the use of
the Baggot-street school failed, for i^ant of an object ; and that the
sum of £1000 intended for it was not devoted to general charitable
purposes, and that, therefore, it fell into the residue bequeathed
to Bowes Daly ; and praying the decision of the Court, and that
the trusts of the will, so far as concerned the two sums of £1000,
might be performed. The respondents named were the trustees of
the Baggot-street institution, ^e incumbent of the parish of St.
Peter's, and the Attomey-Greneral.
Mr. Brewster and Mr. Oeorge May^ fat the residuary legatees.
Argument. On the statement of the trustees of the institntion in Upper
Baggot-street, there does not exist any such charity as a Protestant
school attached to their chapel. Considering what a school is, it
would be too great a stretch of language to hold that this establish-
ment for the benefit of a certain class of females could be deemed a
schooL It cannot be so described, if there be not an organised
system of teaching or telLchers attached. It is not possible to say,
therefore, that this establishment is within the scope of the bequest
or the terms of the will. Then the question is, whether the bequest
&ils altogether, or can be worked out by this Court, cy pres^ on the
doctrine that a charitable bequest will not be allowed to fail fbr want
of an object ; but the rule is established, that that can only be done
where the testatof appears to have had a general intention to make
a charitable bequest, and that, when he seems only to have had a
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CHANCERY REPORTS.
43
pMticalAr chgritj in view, if the beqnest is for any reason invalid, t|ie 1 860.
legacy lapses. The mode of the gift here makes no difference ; the ' — ^!^]Lf
snras hoiag all speoifieallf appropriated, it is as if he had mad^ ^
different bequests of £1000 eaek It makes no difference, his haying ATTOKHsr-
pot them together in the first instance : Attomey^Genend v.
Hmrsi (a) ; Attomey^General v. GoUing {b) ; Carberry y. Cox (e) i
Au^tmey-Gemral y. Ironmongers Comf^my (<0* Of course, as the
rest of the estate is in no way inyolyed in this qoestion, the costs of
this matter, relating exclosiv^y to this fnttd, most he borne by it.
a|£N£RAL.
ArgvmetU.
Mr. R. B. Warren and Mr. Franks, for the tmstees of the Pro-
testant Episcopal chapel in Upper Baggot-street.
This institotion may fiuriy be deemed a school. It is a house
for discipline and instraetaofi % at any rate there \b enough to sh<>w
that this bequest ou^ to be carried out as a charity ; and, if
so, the Coort will give it to this institution : Loioombo y. Win-
iermgham (s) ; In re Clergy 8oeiety(fJi Hester y. Tregoe(g).
As for the costs, the invariable rule is, that the residuary legatee
bears all the ^eoets of determining the construction of a will.
lir. Francis Brady, for the rector of the parish of St. Peter's.
Mr. C<issidy, for the Attomey-Creneral, submitted that there
was such an indication of a general charitable intention, that the
Court would carry it out ey pres.
The Lord Chancellor.
I am not satisfied in this case that, on the materials before me,
I could say that this institution comes witiiin the description of a
school annexed to the Episcopal chapel in Upper Baggot-street,
according to the provisions of the trust deed, llie chapel seems
rather to be annexed to the school, or the establishment contended
to be a school. I think it is better that some points of evidence
(a) 2 Cox, 3fi5.
(c) 3 Ir. Chan. Bep. 213.
(e) 13 Bear. 87.
(^)6Biiflt. 113.
(6) 2 Bro. 42a
((0 2114K.576.
09 2KayAJ.ei5.
Judgment,
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DALY
V.
44 CHANCERY REPORTS.
1860. should be supplied, which might aid ia arriving at a right con-
Chancery,
elusion ; and I do not think it necessary just now to discuss the
questions raised, respecting the construction of the bequest, as I
ATTORNEY- think that at present I cannot do anything more than refer it to the
GENERAL
Master to inquire whether there is a Protestant school attached
Judgment, ^q ^^jg chapel, within the meaning of the will. Then there arises
the question as to what direction is to be given, in case the Master
shall find that there is not such a school ? It has been contended,
on the part of the petitioner, that this sum of £1000 is sq appropriated
to this particular purpose, that, if it appear that there is no such
school, it cannot be applied for any other charity, and must fall
into the residue for the benefit of the petitioner, who is residuary
legatee. On the other side it was alleged that, even if this insti-
tution-were not within the precise language of the will, yet, on
the whole language of the testator, a general charitable intention
appears to have been shown; so that I can apply the doctrine
of cy presy and appropriate the fund to some other charitable *
purpose.
In this case there are some peculiarities. The petitioner here
fills several distinct characters. He is petitioner ; he is executor
of this charitable fund, and he is residuary legatee ; and he has,
therefore, a personal interest in the decision ; he has an interest apart
from that which, as executor, he would have, to come here to be
absolved from all liability in respect of the future application of
the fund ; and, therefore, this cause petition was rightly instituted,
as the will does raise a question of some difficulty.
I am, however, quite satisfied that there is a general purpose in
favour of charity indicated in this will. If I am to act on the
authority of The Attorney- General v. The Ironmongers Com-
pant/ (a), I must certainly hold the general charitable intention
to have been manifested. The principle is there laid down very
clearly, in such language that it is difficult to conceive a case coming
more completely within it than the present ; Lord Brougham say-
ing:— "So, in the case of a charity, when I bequeath £100 to one
object, and £50 each to two other objects of bounty, my trustees
(a) 2 M. & K. 576.
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CHANCERY REPORTS. 45
violate their duty if they give less than £100 to the one, and more I860.
Chancery.
than £50 to each of the other two ; and that, whether I use words of *— — v — -*
exclusion, such as ** no otherwise," "no other charities," &c., or omit ^
to use them. But, when the one ohject fails, the doctrine of cy pres attoeney-
QENERAL.
hecomes applicable, although it has no place in legacies to indivi-
duals ; and the intention to which the Court is to approximate will Judgment.
be gathered from the other gifls, and from the gift itself." The
words here are very general. I find a legacy of £2000 given, as to
£1000 in trust for one charity, as to the other £1000 for the other ;
and, taking the intention from the whole instrument, I cannot but
feel convinced that that whole £2000 was intended to be applied for
a charitable purpose of this kind.
Then it is said, on behalf of the petitioner, that the doctrine of
that case is controlled by another principle, viz., that if there be but
a single object of charity named, and that confined to a single local-
ity, definitely specified and pointed out, then there is no room for the
application of the doctrine of cy pres; but, if the prescribed object
be wanting, the legacy fails, as in the case of a legacy to an indivi-
dual. A dictum of the Master of the Rolls, in the case of The
Attorney- GenercU v. Hurst (a), was referred to. In that case, the
testator had bequeathed the residue of his personal estate, upon
trust to pay £12 per annum to the schoolmaster at Ravenstone,
and to apply the surplus, if any, in clothing and apprenticing two
children of the parish of Ravenstone, and one of the parish of Little
Woolstan. The fund was too large for these objects, and the surplus
was held applicable to general charitable purposes ; Sir Lloyd Ken-
yon saying : — '* If there is one particular object to which a testator's
mind applies, as the building of a church at Wheatley, and that pur-
pose cannot be answered, the next-of-kin must take, there being in
that case no general charitable intention ; but when, as in the Case
of Thetford School^ and other cases, the testator intends to give all
generally to charitable purposes, the increase will go cy pres,** Now
that case of a church at Wheatley, which was relied on, is a very par-
ticular case, suggested by the Master of the Rolls — that of building
a church in a certain specified place ; the intention there does not
(6) 2 Cox, 364.
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46
CHANCERY REPORTS,
1860.
Chmteery,
^ _ _v
DALT
ATTQBNET-
OSNEBAJU
JudgmmL
go beyond the benefit of this preoiBO localHji and there is nothing to
show that building a church iq another pUoe «oold at all have eoma
within the wishes of the testator. Then it is said thai, in Car*
berry v. Cox (a), dieoe was a decision which went x^n the prin-
ciple of that didums but, in timth, it wfks a very difbreni case
from the present, s^ far as regards the particular bequesjt which
was then in question. It was the gift of a perpetual annuity to
the nooks of Moast Melleraj, near Cappoquin, to be appropriated
for the improTevtent of the chapel of Melleraj, That was as like
the case of & bequest for building a church as could well be ima-
gined ; and, accordioglj, I^ord Chancellor Blackburne says there : —
** The finding as to this is, that the defendant, the Rev. Matthew
Joseph Ryan, who is the successor of the Very Rev. Michael
Vincent Rjan, deceased, is the abbot and principal of the monks
of Mount Meller^. From this I infer that, since the dsiatb of
the testator, Michael YinceBt, who was then the abbot or prin-
cipal, has died ; so that I canopt reeogniae any right in his
successor; neither can I discover any general charitable purpose
thait can authorise the Court in devising a scheme.** Tha^ beqqeat,
however, was of an aniiuity.-*4i specific hequ^t, staadiAg bf i^selC
and totally without anything to indipalc a general purpose of
charity; and, therefore, it was decided to belong to th(S reaiduary
legfUee. In the very aaiBie case, however, the cy pres doctrine
was applied to Another bequest mpre like this, by which the suqi
of £20 yearly was bequeathed "to the monks of Shandpn, near
Dungannoo, to provide clothing for the poor children attei^iiog
their school.'* Th^ school was iNQcidentally discoBjtiaued ; hot the
Lord Chancellor held that, eveo if the school was altogether to
cease, there was such a g(B4ieral charitable intention indicated
as to be capable of being carried out by a scbevAe befiffe the
Master. Some other decisions may be nention^ showing jthat
the doctrine may be applicable even in the mwsh weaker $aae of
an isolated bequest, if the bequest cui be seen to imj^y a general
charitable intention. Master v. Ti^ke w»b a case where the tes-
tator gave £500 to a voluntary society called the ^* Plyinavth
(a) 3 Ir. Caian. B^, 281.
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CHANCERY aEK)BTS. 47
and DeTonehire Asjrlam for (br the reception o£ female penitents." I860.
This society was in existence at the time when the win was made,
and at the death of the testator, but was soon afterwards dissolved ;
and the Master of the Bolls held that there was a sufficient indica-
tion of a general charitable purpose, and directed a scheme to be
prepared by the Master, in order to the execution of it cypres, Judgm§Mi.
One Case was mentioned, in which a question not unlike this
occurred ; I mean In the maiier of the Cl&tgy Society (a) ; and
it is more analogous perhaps than aify other to the present, in this
respect^ that the will bequeathed several sums to different institu-
tions of a similar character ; and then, though one could not be
found, it was held that the bequest to it could be applied to charity
cypres. The will was : — *^ I bequeath to the following societies or
institiitioiiB established or carried on in London the several legacies
or snms next hereinafter mentioned ; that is to say, to the Church-
building Society the sum of £2000 £3 per cent, consols; to the
Clergy Society the like sum of £2000, like annuities ; " and so on,
giving similar legacies to other societies. The executrix could not
discover what society was meant by "the Clergy Society." Several
institutions claimed this legacy, and the executrix paid it into Court
under the Trustee Relief Act. It was strongly argued that the gift
must be held void f<^ uncertainty, because no object could be found
to answer the description ; but a scheme was directed, the Vice-
Chanedlor saying : — *^ The right course seems to me to be to direct
a scheme for the application of this ftind in London ; the testatrix
has specified that locality, though she has not sufficiently defined
the object of the gift." That decision is a very useful guide in this
case ; for we have the separation of these two sums fii^m the rest of
the property, which are stated to be for the benefit of schools in St.
Peter's pariah. One of them is tiientioned, in a general way, as the
sehool of the parish ; the other, which he shows a wish to benefit,
is also situate in the parish of St. Peter ; and therefore there is, so
far, an indication of intention to benefit the Protestant schools in
the parish of St. Peter.
In Barrett v. Hayter (6), the testator bequeathed as follows : —
(a) 1 K. a J. 615. (6) 2 Bear. 81.
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48
CHANCERY REPORTS.
1860.
Chancery.
K , -/
DALY
V.
ATTORNEY-
GENEBAL.
Judgment,
" I leave, after the death of Lucy Hawes, as many thousand £3^ per
cent, to the following charities; viz.,^ £1000 £3^ per cent, to the
Jews' poor, Mile-end, " and so on to a number of other charities.
There was a reference to inquire what charity was meant by the
" Jews' poor, Mile-end," and a controversy arose as to which of two
institutions was entitled to this ; and the Master found that there was
no sufficient evidence as to what charity was meant by the testator
by the description of the ** Jews' poor. Mile-end." Both charities
filed exceptions to the report. The Master of the Rolls overruled
both sets of exceptions, but applied the fund, by the doctrine of
cy pres, to the two charities equally. Thus, in fact, the gift there
was to a particular institution, of a portion of a larger si^m, the whole
of which seemed to be dedicated to charitable purposes — a case pre-
cisely analogous in that respect to the present ; and the Master of the
Rolls, not being able to find the particular institution intended by the
testator, proceeded to have a scheme settled, by which his wishes
might be carried out o^ pres,
I need not, however, go more at length into the cases, the whole of
which are collected in a note to the case of Loseomhe v. Wintering-
ham (a) ; but on the grounds which I have mentioned, looking to all
the cases and to the language of Lord Brougham, I do not think
that I can hold that there is any expression in the will to indicate
an intention that the fund should not be applied for the benefit of any-
thing save schools attached to this Episcopal chapel, or to show an
appropriation of this sum to one purpose only. The intention ex-
pressed is in favour of schools in St.* Peter's parish, one in one place
and another in another. There appears a general intention to sup-
port such schools, and I think it a fit case to make a reference as to
the proper application of the fund.
Then the question arises, who is to pay the costs of this suit ? Now,
it is plain that if this had been a cause petition to have a general
administration, and this question had arisen in it, all the costs must
have come out of this general personal estate. The legatee is en-
titled to be paid his legacy, discharged of all such deductions ; he is
to have it clear ; and whether the administration takes place with
(a) 13 Beay. 84.
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CHANCBEY REPORTS. 49
or without the aid of a Court of Equity, he is entitled to have the I860*
legacy exonerated. If, in order to have the rights clearly ascer- >^^ — ,, — ^
tainedy any expenditure is necessary, whatever costs may be so in- ^^
curred must fall on the personal estate. The cases are very fall a'RTornet-
upou the point I had them before me in the case of Williams v.
Armstrong (a), in which a question of construction was raised as to Judgment,
a particular fund ; and I then held that ^* the costs of all necessary
parties to an administration suit, occasioned by a question on a will,
come out of the general assets, and cannot be thrown on a particular
fund, though the only difficulty arises between, the parties interested
in that fund, knd there is no question as to the rest of the assets."
In that case the question was as to the construction of the word
" balance." The testatrix had bequeathed certain amounts out of a
sum of stock, which was really only £1750, but which she stated
in the will to be £2255, to certain parties respectively, and gave
the balance to a particular individual ; and the question was
whether, according to Pags ▼• L€0pingwell (6),' the balance was
to be taken as an ascertained aliquot share of the actual fund, or
whether the legatee of the balance was not to get anything until the
others were fully paid. I held that the legatee of the balance could
get nothing, the fund being deficient ; but that although the question
only concerned that particular fund, still, on the result of all the
authorities up to that time, the costs of all parties were held to
come out of the general residuary estate There is another case
much to the same effect, Wilson v. Sqwire (e), which was a suit for
administering a testator's assets, and in which a legacy was claimed
by two legatees adversely to each other ; and it was held that, as
the question arose on the testator's will, the costs must be borne by
his estate, and not by the legacy; the Vioe-Chancellor saying : —
** If a fund be separated from a bulk of the testator's estate, and
then a question arises about it, the fund pays the costs. But if the
question is, who is entitled to the fund in the first instance, that
question is raised by the testator himself, and his estate must bear
the costs ; for a testator's estate bears the cqsts of all the questions
(a) 12 Ir. £q. Bep. 356. (6) 18 Yes. 463.
(c) 13 Sim. 212.
VOL. 11. 7
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50
CHANCERY REPORTS.
1860. that arise on his will respecting it. In this xjase, therefore, the costs
Chaticery.
'' . -' of all parties must be paid out of the estate."
DALY
^ ^^ Now here we have a fund which has never been separated from
ATTORNET- the estate of the testator. The petitioner, who comes to seek the
GENERAL. ,. . « , ^ . ,
directions of the Court, is the executor and residuary legatee under
Judgment.
the will, and is the trustee of this particular fund. There is no
other trustee of it ; it has never been appropriated to a separate trust.
There has been no administration of the estate ; the consequence is,
that if there were a suit by the Attorney- General, or by the charity,
to have an administration, or by the executor, to have his rights
ascertained, the costs must come out of the fund. In this case the
distinction is taken that it is not for general administration, but to
have the rights in this fund ascertained ; in other words, it is filed
partly for the protection of the executor, partly fl>r the purposes of
the owner of the fund, whoever he may be. Under these circum-
stances, I think that up to this point the costs should be paid out of
the residuary estate, and that the remaining costs should be borne
by the fund itself, as if brought in under the Trustee Relief Act.
Mr. Brewster and Mr. May, for the petitioner.
Argument. If this fund had been brought in under the Trustee Act, that
expense would have been imposed on the fund, in addition to the
expense of a petition against the Attorney- General, which would, no
doubt, have been directed by the Court. It was for the benefit of
the fund to take the course here adopted ; and the petitioner, who is
himself the residuary legatee, ought not to be burdened with this
expense. The* fund is perfectly appropriated on special trusts, and
separated from the rest of the property. It is not an administration
suit, it is merely in the nature of, and analogous to, proceedings
under the Trustee Relief Act.
The Lord Chancellor.
Judgment. I do not think that there is anything here to take this case out
of the general rule ; ngr ought the executor to be allowed to evade
the settled rule on the subject, merely by an alteration in the form
of proceeding. The executor comes for the advice of the Court,
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CHANCERY REPORTS. ' 51
and the general personal estate must paj for that. It is settled by 1860.
the cases to which I have referred, that whenever a suit is instituted < ^ — 1;
for the administration of personal estate, though there be only a
question as to the bequest of a particular fund, it is a matter of strict attorn et-
right that the meaning of the will is to be declared at the expense _]
of the general estate. It is now, however, contended that an Judgment.
executor, keeping portions of the assets in his hands, and after the
general estate is wound up, may say, " Here is a particular sum,
respecting which I will ask the opinion of the Court," and may
throw on that fund all the costs of that inquiry. I allow that, if
it can be once properly vested in separate trustee?, and' thus com-
pletely severed from the residue, it may, if a question arises, under
some circumstances, be made to bear the costs ; but I do not think
that it can in this way, which would be just as applicable if there
were twenty different funds to be disposed of, as in the present case.
I cannot allow the residuary estate to be withdrawn from its proper
liability by this method of proceeding. If the executor has any
assets, he must pay these costs out of them. All that I can do is to
have the money, if now brought into Court, made to bear the costs
of any further litigation respecting it.
Reg. Lib. 26,/. 185.
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52 CHANCERY REPORTS.
1859.
Ch. Appeal,
Court of 9pptA in tfjbAncetp*
KERNAGHAN v. M'NALLY.
Dec. 9.
A widow filed This case came before the Court on an appeal from an order of the
against alienees LoBD CHANCELLOR, dated the Uth day of July 1859, by which
band!^ In°*or- ^^ ^^ dismissed the petition. The following were the material
out her "tide ^^^^ ^^ *^® ^*^ :— Alexander Nixon made his will, dated the 5th
to dower, the ^^y of March 1776, and thereby devised certain lands therein men-
petitioner was ^ ' '
obliged to give tioned, to his executors, therein named, in trust for his eldest son,
m evidence a
deed, by which George Nixon, and bequeathed all the residue of his real estate to
the estate had
been conveyed his executors, in trust for his younger children, as tenants in com-
to the person
from whom her mon, subject to the charges in the said will mentioned. In the
ed. This deed month of November 1776, after the execution of said wiU, the said
dtal^tlmt^the Alexander Nixon purchased the lands of Rea's-tenement or Rea's-
w^o^tetand- P*"^^' which were conveyed to him by deed of the 16th of November
ing in certain 1775
trustees. The * '
petitioner also Mr. Alexander Nixon died in 1791, leaving his said eldest son
gave in evi-
dence certain and six younger sons surviving him ; and these younger sons imme-
orders of the
CoortofChan- diately went into possession of Rea's-park, and so continued in
eery, to show , ., , , , , i. , ,
that sach red- possession until the subsequent sale thereof, and dealt with it as
tal was mis- , . a 1 • • • • >n «
taken. —ZfeW, ^"^^'^ ^^^ property. An administration suit (known as Scott v,
entitl^^to^^ iVtxon) having been instituted by a judgment creditor of Alexander
ascertain '^he ^'^^°» * ^i^c^ee was made in it for a sale ; and Rea's-park was, on
lands of which the 24th of April 1839, sold to George Rankin. A reference
she was dow- * °
able. respecting the title of Rea's-park having been then made, and the
Statement, Master having reported good title, the purchaser took exceptions to
this report, which were allowed by the Master of the Rolls, by an
order dated the 14th of January 1843. From this order the plain-
tiffs appealed ; and, on the 8th of February 1843, Lord St Leo-
nards (the then Lord Chancellor of Ireland) reversed the order of
the Master of the Rolls, on the ground that the younger children
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CHANCERY REPORTS. 53
of the said Alexander Nixon had acquired an indefeasible title, bj 1 859*
an adverse possession of more than twenty years: vide this case, « 1^,. .../*
« mr. X V * ■.. 1 , . , KERNAOHAN
reported as ScoU v. Ntxon (a). Accordingly, by an indenture, p,
bearing date the 3rd day of April 1844, and professing to be made
by Master Litton, of the first part, James Scott, Esq., of the second -Ste^eiiwii^
part, Adam Nixon and Alexander }<^ixon, of the third part, the said
Alexander Nixon and Maryanne his wife, of the fourth part, Han-
nah Scott, Elizabeth Scott and Mary Scott, of the fifth part, Ralph
Scott, of the sixth part, Adam Nixon, of the seventh part, Montgo-
mery Downes Nixon, Frederick Nixon, Mary Nixon, Henry Carey
Field, Jemima Field and Espine Ward and Sophia his wife, of the
eighth part, William Ribton Ward and Montgomery Downes Nixon,
of the ninth part, Jemima Nixon, of the tenth part, the Rev. Alex-
ander Nixon, of the eleventh part, the Rev. Thomas James Oven-
den, of the twelfth part, Alexander Power, of the thirteenth part,
the said Adam Nixoo, of the fourteenth part, and the said George
Rankin, of the fifteenth part, the parties thereto of the first fourteen
parts conveyed to the said George Rankin Rea's-park or Rea's-tene-
ment in fee. This deed contained a recital that the legal estate in
those lands was in the representative of the trustee of Alexander
Nixon's will ; and the conveyance was not executed by such repre-
sentative.
On the 26th of June 1844, the said Joseph Rankin conveyed the
lands of Rea*s-park to Thomas Kernaghan, the appellant's husband,
in fee. In 1848, Thomas Kernaghan made a conveyance of all his
property to trustees, for the benefit of his creditors. In 1849> the
trustees, having set up Mr. Eernaghan's property for sale by
auction, Rea's- tenement was purchased by Edward Dufiy. On the
investigation of the title on behalf of the purchaser, it was objected ^
that the property was subject to the petitioner's title to dower. This
objection was afterwards compromised, by the parties permitting the
purchaser to retain £200 out of the purchase-money, the petitioner
refusing to release her dower. On the 8th of August 1850, the
lands of Rea's-park were conveyed to Edward Duffy in fee, by a
deed in which the petitioner was named as a party, but not executed
(a) 6 It. Eq. Rep. 8; S. C„ 3 Dr. & W. 388.
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64
CHANCERY REPORTS.
1859.
Ch, Appeal,
kbbnaohan
m'nallt.
Statement.
hy him, and containing a recital that the petitioner w^ entitled
to dower out of the said lands, contingent on her surviving Thomas
Kernaghan. On the 2l8t of January 1861, said Edward Duffy
conveyed Rea's-park to the respondents Charles M^Nally, Daniel
Boylan and Thomas Gartland, in fee.
Thomas Kernaghan having died, the petitioner instituted this
suit, for the purpose of recovering her dower out of Rea's-tenement.
At the hearing in the Court below, the deed of the 8th of April
1844 was given in evidence on the part of the petitioner, who
had had no opportunity of seeing it before that hearing ; and, it
appearing, by the recitals in that deed, that the legal estate was
outstanding in trustees, the Lord Chancbllor m^de a decree dis-
missing the petition. From this order the present appeal was
brought. ,
The Solicitor-General (Mr. R. Deasy) and Mr. F. W. Walshe
(with them Mr. Richey)^ for the petitioner.
Argument. The widow, in a suit for dower, has a clear right to have an
opportunity of trying her title in the Master's office, or by an
action at Law, if her title to dower be controverted : Mundy v.
Mundy (a) ; Curtis v. Curtis (b) ; Dormer v. Fortescue (c) ; Darcy
V. Blake (d). And she has also a right to the assistance of the
Court, to enable her to have an opportunity of trying that title.
That is all the relief we seek here, although we have made a case
which really shows the petitioner to.be entitled. The decision in ScoU
V. Nixon (e) shows that the legal estate was vested in the younger
sons of Alexander Nixon, and that the trustees of his will were
as much excluded from the property as the eldest son was. That
decision shows that the deed was mistaken in reciting the legal
estate to be in the trustees ; and we only ask not to be concluded by
this erroneous recital. If we be not. Sir Edward Sugden's decision
in Scott V. Nixon determines the whole case in favour of the peti-
tioner ; and, even if there be anything like an estoppel in that
(a) 2 Ves. jun. 125. (6) 2 B. C. C. 620, 632.
(c) 3 Atk. 130. (d) 2 Sch. &Lef. 390.
(e) 6 Jr. Eq. Bep. 8; S. C, 3 Dr. & War. 388.
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CHANCERY REPORTS.
55
deed, the conveyance to the respondent operates as forcibly in the 1859.
petitioner's favour. ^J^j^Hl.'
KEBN1.0HAN
Mr. Brewster and Mr. Lawson^ contra. ^
The deed states the finding of the report, under which the
property was sold ; and as the petitioner can only make title
through that deed, she is estopped from disputing the averments
in it : Bowman v. Taylor (a). The deed clearly failed to pass a
legal estate. The younger children had no colour of title, save
under the will, and could not be heard to say that they did ^ot
derive their title under it : Hawhabee v. Hawksbee (b) ; Anster v.
Nelms (c) ; Garrard v. Tuck (d) ; Melling v. Leak (c).
Arsument,
The Lord Chancellor.
This is a very singular case. I think that there ought to be
some further inquiry ; and it would only put the parties to a needless
expense to leave the petitioner to institute pother suit; but the
petition of appeal does not at all point to the case made here at
the Bar, nor was it suggested at the hearing before me. Under
these circumstances, I think that there ought to be a further
inquiry, but that the appellant must pay the costs of the pro-
ceedings, which her own conduct has rendered necessary. I think
that there must be a reference to one of the Masters, whether
Mr. Eemaghan was seised of these lands.
Judgment,
The Lord Justice op Appeal.
The petitioner, who claims dower out of the estate purchased
by her deceased husband, naturally relied on the deeds which con-
stituted his title. One of them, being the conveyance under the
decree of this Court to a trustee for him, was produced by the
respondent, and was read, and entered as the evidence of the peti-
tioner. The effect of this deed, as conveying a legal title, was in
fact the only matter discussed ; apd the Lord Chancellor decided.
(a) 2 Ad. & El. 278.
(c)_l^H. &Nor.223.
{h) 11 Hare, 230.
((0 8C. B. 231.
(e) 16 C. B. 652.
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1869.
Ch. Appeal.
^ CHANCERY REPORTS.
most properlj, that it did not pass the legal estate, not having been
executed by the heir of the surviving trustee in the will of Alex-
„^ ander Nixon, or by a trustee legally constituted in his place. This
Ihv'ltf A T T 7
* assumed (and there was no evidence to the contrary presented to
Judgment, ^^iQ view of ^he Court) that the legal estate had passed to the
trustees in * the vriU of Alexander Nixon, of 1 766, as the deed
recited ; and the objection to the petitioner's claim, so far, appeared
to be conclusive. There were, however, several orders and pro-
ceedings in ScoU V. iVtaron, in which the lands had been sold to
a trustee for the petitioner's husband, entered as proofs on the part
of the petitioner; and now, for the first time, they are brought
under our consideration * I do not believe that there is an aUusion
made in the case of either the appellant or respondent to them.
The result is, that they disclose a state of the title quite at variance
with the recital in the deed of sale, on which the petitioner had
entirely rested, and on which alone the Lord Chancsllok had-
acted in dismissing the petition. From thepi the real state of the
title appears to be, that the lands were purchased by the < devisor
after the execution of his will ; that they did not pass to the
' trestees, but that the. six sons claiming as devisees of the testator
became seised -and possessed of them, as if they had been well
devised ; and so had acquired iuch a title by adverse possession
as the purchaser was bound to accept. . This evidence satisfies the
object which I had in view in asking whether, besides the deed
of sale, there were any deeds or facts on which the dowress could
rely, as putting her claim on grounds difierent from those founded
on the truth of the recitals of the purchase deed undet* the Court.
The consequence of the evidence I haye alluded to, as now dis-
closed, is, either that the petition should be disolissed without
^"^Jrejudice, or that we should reverse the decree, and direct an
inauiry into the title. The mwer is, for aAl purposes, the more
cqpvenient course ; but it must be on the terms, as to costs, sug*
gested by the Lord Chancej^lor.
Chancery Appeal Hearing Book, 1,/. 330.
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CHANCERY REPORTS. 57
1860.
Court of Sanktttytcs anH Sn^olbentp.
In re JOHN QUIN a Bankrupt ;
Ex parte CHRISTOPHER MOORE.*
June 6, 14.
In this ease Christopher Moore sought to prove on the bankrupt's A employed
B, a builder,
estate for £251. 7s. lid. The fbcts, as appeared by the affidavit of to take down
the front wall
Moore, sworn the 30th of May 1850, were as follows : — In 1859, the of his hoose,
, ,.. and execute
said Christopher Moore, being desirous of taking down and re-build- some other re-
. ing the front wall of a house occupied by hi to, No. 144 Upper the works were
Dorset-street, and of making certain alterations in the next house, }hj*^^ier of
No. 145, entered into a contract with the bankrupt, who was a ^ouse^^^sel^ed
builder, for the above work, for the sum of £150. Some extra works, \ ««J»f . HP^^
' ^ A, that injury
not in the estimate, were done, and the whole completed according was likely to
result to his
to contract. On the 17th of September 1859, the bankrupt was house from the
repairs, and
paid for the entire works, original and extra, the sum of £177. that he would
hold A respon-
12s. 8d. On the Idth of July 1859> the works being then jn pro- gibie. B,upon
gress, a notice was served upon Moore, by Edward Doran, who mentioned to
resided next door, at No. 146, that said alterations were likely to be ^i^^ 'estimate of
injurious to his house, and that Moore would be held liable for any fou^^ng ^e!
damage caused by said alterations. Moore showed said notice to the I?iJ^"^^Lj^
bankrupt, who assured him that the works in progress eould not in ^^} ^^® M^'
QOtnff work, 1
any way injure Dorao's house, and, as a guarantee, indorsed on the bereby under-
estimate of the works a memorandum, dated the 23rd of July 1859, myself respon-
sible for any
injury done to
the adjoining houses." Some works in addition to these in the estimate were done,
the contract was completed, and B paid in full for all. C brought an action against
A, averring negligence, anff alleging various injuries to his house from the works.
B, upon being cal^d upon to settle or defend the action, made no reply, and soon
after became bankrupt and absconded. A, having had to pay £191. 7s. lid.
damages and costs, and £60, his own expenses in the action, sought to prove for
£251. 7s. lid. — ^e/</, that (supposing the memorandum to constitute a contract
upon a valuable consideration) the damages which C might recover against A were
not necessarily identical with those contemplated by the guarantee, and that A could
not prove for the above sum, either as for a debt payable upon a contingency, within
8, 257, or as for a liability to pay money upon a contingency, within s. 258.
• Coram Lynch, J.
VOL.11. 8
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1860.
Banktcy; ifC.
In re
QDIN,
Statement,
58 CHANCERY REPORTS.
in the following words : — " In carrying out the foregoing work, I
undertake to hold myself responsible for any injury done to the
adjoining houses, Nos. 143 and H6.** The works were accordingly
completed and paid for. On the 31st of October 1859, Moore was
served with a writ of summons and plaint, at the suit of the said
Edward Doran, who claimed £1100 damages for the injuries alleged
to have been done to his house. Moore called upon the bankrupt
to settle or defend the action, but got no reply, and shortly after
the bankrupt absconded from this country. Doran recovered in
said action £75 damages against Moore, together with £116. 7s. 1 Id.
costs, which sums, amounting in all to £191. 7s. lid., Moore was
obliged to pay. In addition to the above sums, Moore had incurred
other costs and expenses in defending the action, amounting to £60.
Moore claimed to prove for the above sums, making, in the whole,
£251. 78. lid.
Argument,
Mr. Sidney^ for the assignees, cited Maples v. Pepper ^) ; War-
burg v. Tucker {h)\ Young v. Winter {c) ; and contended that
Lewis V. Peahe (d) did not apply. On .the point whether Moore
was entitled to recover the costs which he had to pay in the
action, he cited Mayne- on Damages^ pp. 28, 29; Tindall v.
Bell{e) ; Short v. Kallotoay (f) ; Beech v. Jones (g) ; Pierce v.
Williams (A).
Mr. James Keman^ for Moore, referred to the Bankrupt Act,
sections 253 to 258, especially ss. 2579 ^^B, and commented on
Tindall v. Bell^ and cited Lampleigh v. Brathwait{i)\ LewU
V. Peake (k) ; Smith v. Compton (/). The form of the guarantee
(a) 18 C. B. 177.
(b) 4 Jnr., N. S.. 1142 ; S. C, 9 E. & B. 914.
(c) 16 C. B. 401. (d) 7 Taunt. 153,
(c) 11 M. & W. 228. (fj 11 A. & E. 28.
(g) 5 C. B. 696. {h) 23 L. J.. Ex.. 322.
(f> Hob. 105; S. C, I Sm. L. C. 126. 127.
(A) Ubisup.
(0 3 B. & Ad. 407.
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Argument,
CHANCERY REPORTS. 59
may be said to be one that sounds in damages. The contingency 1860.
was the ascertainment after the bankruptcy of an injury done before ^ ^* 9^'
the bankruptcy. It is a hardship, and is contrary to the principle of qcin.
the Bankrupt Law, that he who has given up his estate should be left
liable to a demand ascertained before bankruptcy. If the amount of
damages be ascertained before bankruptcy, why can we not prove ?
— [Ltkchi J. Is it necessary to have recourse to that section ? Is
this not an existing debt ?] — He cited Boyd v. Robinson (a). In
this case the liability was incurred before bankruptcy, therefore we
are entitled to prove. As to costs, he cited Lewis v. Peake (b).
Ltnch, J.
This was a claim made by Christopher Moore, for £251. 7s. lid., June 14.
on foot of an alleged indemnity, indorsed on the contract, and dated
23rd of July 1 859. Moore was the owner of a house in Dorset-
street, and had entered into a contract with the bankrupt, whereby
the bankrupt was to make certain alterations in Moore's house.
After the contract was made, and while the work was in progress,
Edward Doran, the owner of the adjoining house, apprehending
damage to his concerns, from the works, served a notice on Moore,
cautioning him respecting the apprehended mischief, and threatening
to hold him responsible therefor; upon this the bankrupt indorsed
on his contract the alleged indemnity, in these words s — '*In carrying
out the foregoing work, I hereby undertake to hold myself respon-
sible for any injury done to the adjoining houses 143 and 146."
After this the works proceeded. The bankrupt completed his con-
tract with Moore, and was paid in full. A short time after, Quin
became bankrupt and, absconded. The petition was filed on the
9th of November 1859. On the 31st of October 1859, an action
was brought against Moore by Doran, for the injuries done to his
house during the alterations made, for changes injuriously affecting
him in the new works, and for resulting injuries in stopping his
trade, &c. Negligence is alleged in the summons and plaint ; but,
on examining the pleadings in that case, and the issues raised, in
my opinion the damages that Doran might recover against Moore
(«) 5 C. B., N. S., Sfn. (6) 7 Tatmt. 153,
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Judgment,
60 CHANCERY REPORTS.
1860. are not identical with those contemplated by the memorandum on
— ^?— ' ' the contract; the memorandam contemplates merelj injuries done
QUiN. to the house by the works in execution^ and would not, I think,
cover the case of the change of the building, no matter how well
executed, which might have rendered Moore liable to an action, as
for instance stopping ancient lights, or interfering with other ease-
ments belonging to the acyoining house. I, therefore, do not think
that the amount of damages and costs recovered in the action against
Moore is the necessary amouat of damages to be recovered in an
action by Moore against the bankrupt, if ^ such action lay on this
memorandum. In my opinion, any claim on foot of that memoran-
dum, which now exists, is plainly a claim for unliquidated damages,
for not repairing or making good any injury done by him to the
adjoining house, in the works executed by him. The language of
the memorandum is not indemnity from any claim by the owners
of the houses against Moore,, it is only for responsibility for injury
done ; and I cannot see that these are identicaL It is unnecessary
for me here to decide whether the contract disclosed by the memo-
randum has really any valuable consideration to support it. The
contract was then complete, and in course of execution, and boond
Moore as well as the bankrupt ; and it is not easy to see the consi-
deration for it, as it is now sought to interpret ijt ; but I do not think
it necessary to decide this point, as my opinion is^ that this claim,
even admitting it to be a liability of the bankrupt, is not proveable
in the bankruptcy.
It is now sought to prove against the estate of the bank-
rupt the claim which exists on foot of the menLorandum, against
the bankrupt; and several cases have been cited to me, showing
the construction put on the providions of the statute respecting
proofs for debts payable on a contingency, and, for liabilities to pay
money upon a contingency. In addition to the cases cited to me, I
have two very material cases on this point : Boyd v. Robins (a),
on a guarantee (continuing) for goods supplied, in which case the
Exchequer Chamber reversed the decision of the Common Pleas, as
to the goods supplied after the bankruptcy of the guacaator, and
Ca)4C.B^N. S.,749; in Eiror, S C. B., N. B.,5G7.
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CHANCEKY REPOETS. 61
Parker y. Inee (a). These cases bring down the decisions of the
Courts to the latest period reported, and are in accordance with the
cases cited already. I am not going into any minute consideration
of the cases, or the points of difference in them, as, in my opinion,
this case does not require for its ^decision any such nice considera-
tions. Take the words of the statute themselvea, and see if, by any
possibility, this claim can be embraced. Moore, certainly, at the
time of the bankruptcy, had no debt due to him, or no claim of any
sort against the bankrupt. The bankrupt had undertaken to be
responsible for injury to the adjoining houses, and was responsible
for it, if injury happened, but between him and Moore there was no
debt and no liability then ; but if Moore is called upon to do what
the bankrupt contracted to do, namely, to discbarge the damages for
injury done to an adjoining house, then he will have an action over
against him on his contract : and this contingent circumstance of
liability is said to be within the statute, either as a debt payable
upon a contingency, or a liability to pay money upon a contingency.
Now it seems to me clear it is not a debt payable on a contingency,
for it is in no sense a debt at all, and it is not a liability to pay
money oa a contingency, for there is no liability to pay money at all,
uakas I were to hokl that every sort of liability in tort^ which, in the
end, say resnlt in damages, is properly expressed by the phrase
liabili^ to pay money. Therelore, in my opinion, it is impossible
for me, upon the bnguage of the statute, and having regard to the
decisions of all the Courts in England on it, to say that this claim
comes within its provisions, and I consequently feel bound to rule
that this claim cannot be admitted as a proof. I confess that, in
coming to this decision, on the ground of the nature of the claim,
supposing it to be otherwise a well-founded one, I regret the neces-
sity which the language of the statute and the cases already decided
impose on me, and I do not see the policy of excluding from proof
any well-founded demand, because of any difficulty that may exist
as to its ascertainment. Serious injustice may be done parties with
perfeotly dear rights, by this Ck>urt rejecting claims on the grounds
put in many of tW eases ; and a man may, through this Court, be
Ca) 4 H. & N. 58.
JudfWUMt,
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62 CHANCERY REPORTS.
1860. rendered insolvent to discharge liabilities quite as proper to be dis-
v,i»y '— ^ ' charged as any ascertained debt due at the time of his bankruptcy.
QUiN. However,* I have but to administer the law as established ; and I
Judgfkent.
shall be glad if I am shown to be wrong in the decision I have
come to.
Let the claim be rejected, with costs.
4prt/2
Mayi
In re EDWARD RUBY JOHNSTON to Insolvent.^
The decision in This case is reported, on the point upon which it formerly came
this case, ante,
Tol 9, p. 559, before the Court, ante, vol. 9, p. 559, where will be found the mate*
J. ' rial facts. — Judge Lynch haying directed a reference to the Chief
quired by an Clerk to inquire and report as to the debts of the insolvent, alleged
insolyent, sub- ^ ^
seguendj to to have been incurred subsequently to his insolvency, thcr case now
his insolyency,
is charged with came before the Court upon the report of Mr. Kelly, acting for the
a first trust for
his subsequent Chief Clerk. The debts in the first schedule to the report amounted
and, before the to £48. 3s. lid., those in the second schedule (including £250 due
tach such sub^ ^o Mrs. Ackleston, the sister of the insolvent) to £1337- 8s. 3d.,
^^^pn^ making in aU £1385. 128. 2d. The funds to meet the above Uabili-
Ee^satisfied** 'ties consisted of £1 150 realised, including the sum of £273. Is. lid.
that theinsol- lodged in Court; a sum of £500, to which the insoWent was en-
rent is of abi-
lity to pay his titled in expectancy, and a debt of £40, which was pronounced very
scheduled
debts ; and doubtful, if not bad.
this ability to
pay is not to
be determined -m, t\ ^ rr n i
by the casual Mr. JJ. C. Heron, for the assignee.
^IdTbut V ^^* ^' ^' -^^Ty* ^^^ ^^^ insolvent.
tlie possession
of assets ultra
the liabilities t «^«« t
subsequently ^™^«> •^•
mcurred. "pi^jg ^^^ comes afeain before me upon the report of Mr. Kelly,
Judgment, acting for the Chief Clerk, upon the reference which I offered to the
* Coram Ltnob, J.
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CHANCERY REPORTS. 63
assignee, respecting the debts alleged by the insolvent to have been I860.
Btmktcy.tffc,
incarred since his insolvency. Already in this case I have re- '
In re
marked that the order made, attaching the subsequently acquired johnston.
funds of the inHolvent, seemed to me to have been made before the j jgnent
facts were ascertained which could warrant any order beiug made
attaching them as funds in the insolvency ; but I have decided, and
I abide by that decision, that the saving in the order of the 20th of
October leaves the case now to be dealt with by me as if the money
were not already paid into Court to the credit of this matter, and
that I am free to consider whether it is at all a fund proper to be
dealt with in the insolvency. In looking into the provisions of the
statute, I think subsequently acquired property of the insolvent is
certainly charged with a first trust for his subsequent creditors, and
that it never was meant, or could be meant, that any funds in his
possession subsequently were actually bound with an existing liability
to be brought in as funds in the insolvency. To hold that would
lea?e the insolvent incapable of conducting any business until he
had discharged all his schedule debts. However, I cannot yield in
any way to Mr. Barry's argument as to the anticipated legislation '
in England on this subject ; it is not as yet even the law there :
and were it law, I could not regard it here, although I do hope and
trust that the law will always stand on the same foundation in both
countries, and that we may have the same principles and the same
procedure in each. We have the same Court of Appeal, and our pre-
cedents and authorities ought to be of the like operation in each ;
and, I think, everything making our practice different, or our la^s
not the same, is a great mischief to this country. But I have
nothing to do with any principle but that to be deduced from the
Acts before me ; and I hold the principle is, that before I attach
subsequently acquired property, I must be satisfied that the insol-
vent is of ability to pay his scheduled debts ; and this ability to pay
is not, I think, to be determined by the casual possession of a fund
in his name, but by the possession of assets ultra the liabilities sub-
sequently incurred. This principle, being established, leads me then
to consider the report before me. First, I am asked to declare that
the alleged debt of £260 was never a debt, or that it was not to be
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64
CHANCERY REPORTS.
1860.
Banktcy,, ^.
In re
JOHNSTON.
Judgment.
paid until after the debts under the insolvency. The report is in-
accurate, in not finding whether it is a debt or not : however, I have
now on this motion to determine that question on the evidence before
me ; and, in my opinion, finding the evidence all one way, and no
suggestion made to lead me to doubt its truth, I feel bound to declare
that it is a debt. A sister can lend to her brother as well as to a
stranger, and the expected kindness and forbearance of a near rela-
tion is no foundation for declaring the loan not to be a debt ; and
merely regarding now the question of ability to pay by means of subse-
quently acquired property, it would be a strong measure for me
to confiscate this money of his sister, in order to raise up an ability
to pay by-gone debts, and this' in direct opposition to the only evi-
dence, in the case. Taking, then, Mrs. Ackleston's debt as still due,
the report shows me, in first schedule £48. 3s. lid., in second
schedule £1337. 8s. 3d., making a total of £1386. 12s. 2d.; and
against this the assets are £1150 realised, an expectancy on a
sum of £500, and a bad debt of £40. I do not think this shows a
present ability to pay the schedule debts, for I do not think it shows
a present ability to discharge his subsequent debts.
I, therefore, in this state of facts, must declare that the insolvent
is not shown to me to have such ability, and hence, that this fund
is not a fund properly applicable to the matter of the insolvency ; and
consequently I will order this fund to be restored to the insolvent.
The only matter I have then to consider is the costs. The motions,
when made, were prima facie well-founded ; and the realisation of
the claim then existing would have discharged all the debts. By sub-
sequent compromise, now unquestioned, the assets are diminished
below sufficiency ; but I think it proper to give the costs of the pro-
ceedings to the assignee, up to the hearing of the motion before me ;
but the reference was taken at the assignee's own risk, and I must hold
that he substantially failed in every branch of it, and that I should
give the insolvent the costs o^ these proceedings. However, on the
whole, setting one off" against the other, I will make the order with-
out costs to either party, and give the insolvent back the £50 lodged
in Court.
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CHANCERY REPORTS. 65
1860.
Banktcy,, ^c.
In re JOHN M'KENNA a Bankrupt.*
June i
In this case, bj an order of this Coort^ made on the 27th of March A^abanknipt,
haying become
1860, it was (amongst other things) ordered '' that the carriage of able to pa^ in
full, obtained
all proceedings in the matter of this baokmptej, after the creditors an order of tbe
shall have been paid 20s. in the £1, and that this order has been ingthat, upon
complied with, shall be re-convejed by the aMigaees in this matter to ^tara^2oL^
the banlumpt.'' The order also made payment of the assignees' costs pa%ig Uie «h
a condition precedent to the transfer of the carriage of proceedings and Jh^^^<!a^^
re-assignment of the estate. On the said 27th of March, the bwik- ?^ proceed-
°^ ' mgs in bank.
rapt lodged to the crt^lit of the bankruptcy DMtter a sufficient sum raptc^r sbonld
"^ be transferred,
to pay the creditors 20s. in the £1, and they were afterwards paid and the estate
re-assigned to
in full, and the said order complied with, sare as to the payment of him. The cre-
« . . XV. ,... .^. ditors were
the assigneer costs. Owmg to a delay in the taza^A of these costs, paid in fuU;
the bankrupt was unable to have the matter entered for a final audit, the d^of the
or 4o proeuR} a' reassignment of his estate and efl^ts. The bank- b^|^p^ ^
rupt having applied to Henry Thomas Walsh, the trade assignee, ^^^J^^^A
for certain bills of exchange, drawn by the bankrupt on one John ^** nnable to
Nugent, and indorsed to the said Walsh, Walsh lodged the said bills «>»^» a?d get
the carnage of
with Mr. M. Murphy, the official assignee, who handed them to proceedings
transferred,
the bankrupt. The official assignee, upott being applied to, gave and the estate
_-. ^ re-assigned.
Mr. Grerrard, the bankrupt's solicitor, on the 19th of May I860, UpongivingB,
., « „ . ^, .^ the official as-
the following authonty :— aignee, a letter
"Deab Sir — ^If you lodge with me a written guarantee, relieving b iSd'ci^e
official and
trade assignees, A got an authority from B to take proceedings in the names of B and C
for the recoTcry of debts due to the estate. A, having brought an action in the names
of B and C, was served by C with notice to discontmue, on the ground that he had
no anthority to use G's name. The defendant in the action took defenoe, and gave
notice of motion to set aside the summons and plaint, on the same ground. This Court,
having been ajjplied to while the motion in the Law Court (C, P.) was pending,
ordered that said motion be not moved, that the action be proceeded with, and that
C should pay the costs of this motion and of tht motion in the G. P.
• Coram Ltnch, J.
Note. — In this case application was made to the Court on a former day to
grant an allowance to the bankrupt. The Court, having ascertained upon inquiry
that the bankrupt had property over and above what went to pay 20s. in the £i,
refused, on that ground, to grant the allowance.
VOL. 11. 9
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66
CHANCERY REPORTS.
1860.
Banktcy., jfc.
In re
m'kenna. V
Statement.
the assignees from any demand for costs, I will allow you to use my
name, and that of Mr. Wabh, in suing for any debts due to the
estate of Mr. M*Kenna;— Yours, " Michael Mubphy."
Thereupon Mr. Gerrard sent Mr. Murphy the following in-
demnity : — .
"Bo JOHN M*KENNA.
** To MicHAXL MuBPHT and Hbnbt Thomas Walsh, Esqn.
« SiBS — I hereby personally undertake to indemnify you, as assig-
nees of John M'Kenna, against finy costs or expenses incurred or to
be incurred in suing for the outstanding debts due to the bankrupt's
estate, or otherwise in relation thereto.
" Samuel Gebbabd."
On the 13th of Jane the bankrupt commenced an action in the
Court of Common Pleas, in the names of the official and trade
assignees, against Nugent, on foot of said bills. On the same day
notice was senred by Walsh upon the bankrupt to discontinue, on
the ground that he had no authority to use Walsh's name, and
Nugent lodged £15 with the official assignee on account of the
bankrupt's demand. Nugent filed his defence, and on the 19th of June
the bankrupt received notice of a motion in the Court of Common
Pleas, to set aside the summons and plaint That motion was still
pending, and the bankrupt now applied to this Court, pursuant to
notice, that he be at liberty to continue the proceedings taken by
him, in the names of the assignees, against John Nugent, in the
Court of Common Pleas, notwithstanding the notice of motion to the
said Court, of the 19th of June, and for the costs of the motion to be
paid by the said Henry T. Walsh or his solicitor personally.
Mr. GambUy for M'Eenna.
Mr. Dowse f for Walsh.
Argument. The bankrupt should in the first instance have got the order of
the Court authorising him to use the assignees' names. Here Walsh
is a trustee for the creditors. No man has power to use a trustee's
name without his consent. If it be necessary to apply to the Court
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CHANCERY REPORTS, 67
now, it was necessary in the first instance. He cited Bourke v. 1860.
Murray {a). B^aUu^c.
Mr. GambU. mkemna.
The assignee is not an ordinary trustee ; he is the officer of the Argumenu
Court.
Lyhch, J.
It has been argued here that Mr. M*Kenna ought not to be Judgment.
permitted to proceed with this action against Mr. Nugent, on the
grounds' that there is not so much due as is sued for, and that the
amount, being under £20, ought not^to be sued for in the Superior
Courts. I do not know enough of the merits of that case to go into
any question of that kind. I have nothing to do with the merits
of that case. Mr. M*Eenna paid all his creditors 20s. in the £1,
and he w^ in a condition in April last to have got a re-assignment
of his estate, and a legal title to institute proceedings in his own
name for the recovery of this debt ; but he was stopped from doing
80, by the agent of the commission not furnishing his costs, so to
enable the bankrupt to pay them and get back his estate. If the
bankrupt had been in that position, no one could have interfered
with his proceedings to recover the amount of these securities.
There was indeed no special order of this Court to bring the action,
but there was a general order that the carriage of the proceedings
should he given to the bankrupt, on his paying the 20s. in the £1,
and the costs. It would have been more regular to have obtained
the sanction of this Court before bringing the action, for the Court
would not allow any action to proceed under its authority unless
it saw that it was right ; and if any person has any just reason to show
why the action should not be brought, it can be stated. But here the
trade assignee is the person interfering to prevent the action from
being brought in his name. Now, as long as he remains the officer
of the Court, he is bound to submit to the directions of the Court ;
and I cannot sanction that he, an officer of this Court, should, in
defence of a debtor of the bankrupt, interfere to stop an action. Why
should I interfere between Mr. M'Eenna and his debtor ? If the
(a) 10 If. Com. Law Rep., App., xi.
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1860. '
Btnktcy,, 4^.
In re
M^KENNA.
Judgment.
68 CHANCERY REPORTS.
trade assignee took exception to the proceeding with the action,
and brought it before me in a formal manner, I would have con-
sidered it ; but I cannot sianction that Mr. Walsh, the trade assignee,
should of his own caprice interfere to stop the action. I will sanc-
tion the action already brought, and let Mr. M*Eenna proceed as he
may be advised. The only question for consideration was, whether
the assignees are sufficiently indemnified, and I think they are. I
do not consider that Mr. Walsh has the slightest interest in the
matter. If he have any interest, why is it that he has so ? Because
the agent had not his costs ready to be taxed, and delayed famish-
ing them from April to June. That was the only reason why Mr.
M*Kenna had not got the assignment of his estate, to enable him to
have his action tried in his own name. Mr. Walsh is the officer of
the creditors up to this time. He has attempted to interfere with
the action brought by the bankrupt. I direct that the motion in
the Common Pleas be not moved, and that the action be proceeded
with. I also direct that Mr. Walsh, the trade assignee, do pay the
costs of this motion, together with the costs of the said motion in the
Common Pleas, necessarily and properly incurred by the bankmpt,
by reason of Mr. Walsh so proceeding, up to the 22nd of June inat.
Note.— Vide Lowes y. Bott (16 M. & W. 300, 362) ; Spicer y. Todd (1 DowL
306) ; Whitehead y. Hughes (2 DowL 258) ; Emery y. Mucklow (10 Bing. 23).
Jufy 31.
August 1,
In re THOMAS LOCKHART a Bankrupt.*
Where a bank- This was a sitting for the final examination of the bankrupt. The
rapt had traded
recklessly, by passing of the final examination was opposed by the trade assignee,
means of ac- ,,.,..
commodation and by individual creditors, on the ground that the bankrupt had
bills, and had j j i_i i «,
got extensiY© traded recklessly, by means of accommodation bills, and had re«
credit by re-
presentations that he was solvent, and that said bills were for valne, the Court
adjourned his final examination, sine die, npon the state of fiftcts disclosed by his
schedule.
• Coram Lynch, J.
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CHANCERY REPORTS. 69
presented said bills to be bills £(>r value, and also had made other I860,
wilful misrepresentations as to the state of his affairs, and thereby '^"'^"_?^'
got large credit. The bankmpt was a proTision merchant, and ^ockhabt.
Army and Navj contractor. His liabilities, as appeared by the
schedule, were jC42,880, and his assets consisted merely of some
plant necessary to carry on his business, debts due to him, and
household furniture, but no stock in trade ; learing net liabilities
£25,995. The dealings mentioaed in the schedule commenced
in Jane 186B, at which time the debts due by the bankmpt
were £8770, and his assets £1690. In the five months pre-
vious to his stoppage, the bankrupt had reoeived and disbursed
£242,102. The amount of bills discounted from December 1859
to May 1860 was £82,306 ; and, of this amount, £32,205 con-
sisted of aocommodatioo bills, which the bankrupt had repre-
sented to creditors to be for Yalue. Most of these accom-
modation bills were drawn upon the father of the bankrupt, who
carried on the same trade in Glasgow. As the bills drawn on
the bankrupt's father arrived at maturity, they were retired by
means of accommodation bills drawn upon other parties. The
special losses in the two years were put down at £7341. Part
of the said sum of £7341 was the loss on a contract for salt pro-
visions, taken at 32s., when the market price was iOs., and expense
of caring 5b^ giving a loss of 13s. per cwt. £1098, another
part of said £7341, was the loss on a eontraet for mess beef. It
appeared that the bankrupt purchased beef in the Dublin market
at 40s., which he sdd in Glasgow and Liverpool at 21s. to 288. at
the utmost Sundry trade charges were set down at £3000.
These, with many other items, constituted the losses which led
to the bankruptcy. The bankrupt admitted that a sum of £2400,
doe to a Mr. Geale, a victoaller, consisted of debts contracted
in January, February and March 1860, and that it included
the amount of two bills on which Geale had put his name, for
the bankrupt's accommodation.
In explanation of two statements of his affairs, the one made
on the 21st of April last, showing his assets to be £18,000, and
his liabilities £6094, and the other made on the 12th of May
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70
CHANCERY REPORTS.
1860.
Banktcy,, j-c.
In re
LOCKHART.
Statement*
last^ and showing his assets, over and above liabilities, to be
£3000, the bankrupt stated that, by the liabilities in the first
statement, he only meant those v^hich he had to meet between
the 21st of April and the 1st of May, and that the second state-
ment was drawn up on the same principle. Mr. Megaw, the trade
assignee, proved that the bankrupt had made several representa-
tions to him as to the bankrupt's solvency, which induced him to
give the bankrupt credit for wheat, in April and May I860, to
the amount of £1000. He also expressed his dissatisfaction at the
way the bankrupt's books were kept, and stated that the ^bankrupt
had entered into contracts which could not turn out otherwise than
ruinous to him. These statements, as to solvency, the bank-
rupt said he did not remember. It was proved that the amount
of discount on the bankrupt's accounts in the National Bank, from
June 1858 to May 1860, was £1160. Mr. Hardy, the manager
of the National Bank, deposed that the bankrupt always repre-
sented that the bills he was discounting were for value, else the
bank would have nothing to say to them. When the first state-
ment (that of April kst) was produced to him, he thought it re-
presented the actual state of the bankrupt's affairs at the time,
and not the mere requirements for the month. In consequence of
the satisfactory nature of the accounts, which he had no reason to
doubt,. and the explanation of the bankrupt's father, who stated
that the bankrupt's position was an excellent one, he. (Mr. Hardy)
agreed to advance him £2000, to enable him to carry on his
monthly contracts with the Government. That amount was over-
drawn, and he was very much annoyed at it. The second state-
ment was then furnished. He repudiated the idea that he held
out any hope that any further advance would be made until
the statement was inquired into. That inquiry was made, after
which the bank refused to advance any more money.
Argument, Mr. D. C. HeroHy for the trade assignee, asked the Court to
adjourn the final examination sine die, and to refuse protection ; and
relied upon In re Keon (a).
(a) lOIr. Eq.Rep. 113,
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CHANCERY REPORTS. 71
Mr. Levy, for Mr. Geale and another creditor. . 1860.
^ Sanktcy,, fyc.
^ In re
Mr. James Keman^ ior the bankrupt, submitted that, though lockhart.
the Court might not approve of the conduct of the bankrupt, the a^^^m.
justice of the case would be met by passing the final examination,
and letting the assignees enter an objection to the certificate. In
re Keen was a case of forgery, fictitious names having been put
on bills.
Lynch, J.
This case has occupied a good deal of time, but not more than Judgment,
it deserves, for it is a case of very great importance to the mercan-
tile world ; a case in which this Court is bound to remember the
interests of the mercantile community, and the protection to which
it is entitled. Unfortunately, the investigation cannot tend much
to the benefit of the creditors, for whom there are very little assets,
to go against the enormous liabilities of the bankrupt ; but the
Court has a public duty to discharge towards the mercantile world,
which looks for protection against fraudulent traders coming into
the Court, and, as a matter of course, passing through it. In deal-^
ing with the case, I shall first take the schedule containing the
representations of the bankrupt himself; and looking at those
representations, they seem to well warrant the few pertinent obser-
vations made by Mr. Lfivj/ in reference to it. There is in the
schedule a statement of the affairs of the bankrupt on the 2nd of
June 1858, from which it appears that he then owed debts amount-
ing to £8770, and I should be almost justified in stating that there
was not a fraction of assets to meet them. There are put down
as good, bad and doubtful debts £3100, and goods in hand to the
amount of £1600. There is no such thing, for the goods spoken of
are merely the implements by which the bankrupt carried on
his trade ; and he was utterly without capital to enable him to
go on with his trade at that time ; so that the state of his
affairs in June 1858 was, that he owed £8770, three-fourths of
which consisted of accommodation transactions, showing a trade ,
bolstered up'and forced on through means of accommodation bills,
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72 CHANCERY REPORTS.
I860. with scarcely a fraction of assets. No doubt it is stated that
Ban ey., »c. ^^^ bankrupt had large transactions afterwards. But would any
LOCKHABT. ^^^ ^ justified in entering into large and extensive transactions
— commencing in that way? Mr. Keman has asked if this Court
Judgments
would prevent speculation ? It will not. Trade generally has specu-
lation connected with it, and an honest trader may be brought down
in the mercantile world and compelled to become a bankrupt. « It is for
the benefit of trade that legitimate speculation should be encouraged ;
but that speculation is not gambling, nor risking your neighbour's
money, having none of your own to put in peril. In the present
case, the bankrupt was obliged to resort to accommodation transac-
tions to take him out of the state of insolvency he was in in June
1858, and then commenced a career of greater accommodation trans-
actions to float him on in the mercantile world, and enable him to
come before mercantile people with accommodation bills as if they
were legitimate trading transactions. If the case came before
the Court on the state of things in June 1858, as disclosed by
the schedule, it would call for the greatest condemnation by tlte
Court on a trader who so conducted himself. The bankrupt en-
tered into a large Navy contract in October 1859> speculating on a
fall in the price of cattle, when the opposite conclusion might have
been more naturally drawn. Is it honest dealing to go into the
commercial world and raise money on such speculations ? And how
was it efiected ? By accommodation transactions with his father, the
representation or pretence being that they were bills for value, and not
accommodation kites set up to carry on a false and fictitious trade. On
the patent facts set out in the schedule, this Court would not be doing
justice to the mercantile world if it did not state that no such schedule
could pass here without the strongest condemnation. Unfortunately,
accommodation bills are used in trade. It is well known, however, that
a man will lose credit if it be understood that he deals in them.
To avoid this loss of credit, the bankrvpt represented that they
were bills for value, and, on the foith of that misrepresentation,
he got enormous credit. In April last> he made a statement ai his
circumstances; and if it was an account of a month's liabilities
only, as stated, why make a statement of all his assets ? If all
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In re
LOCKHART.
Judgment,
CHANCERY REPORTS. 73
the assets were on one side of the account, why should not all I860,
the liabilities be on the other? K such were the case, any man ^^* Q^^gf*
would understand the document. The bankrupt would not pledge
his oath that he told Mr. Hardy, of the National Bank, that those
were only a month's liabilities. Independent of Mr. Hardy's evi-
dence, the document itself would go to show that it was intended
to be a representation of the bankrupt's circumstances at the time ;
otherwise, what would be the meaning of Mr. Hardy's statements
that, if the account were true, the bankrupt was then in a solvent
state ? That observation would not be applicable to a month's account,
and would only apply to a statement meant to show that the bank-
rupt was in a complete state of solvency. If this view requires
confirmation, the statement made in May abundantly supports it ;
and both documents show that the statement was wilfully and
deliberately made, for the purpose of procuring a large loan to
himself. Poor men are brought to justice for taking small sums
from their neighbours; but. to filch money out of another man's
pocket by force is a lesser crime than for a man to go into the
mercantile world, and put into his pocket money which he knows
he never can pay back. The man who represents that he has
large transactions for value in the way of trade, and by that means
obtains in the mercantile world credit to which he is not entitled,
is guilty of a greater offence than stealing money from his neigh-
bour ; for such conduct strikes at the root of all confidence in trade,
and does great mischief in a mercantile community. Mr^ Hardy
was made the instrument by which Mr. Megaw was also misled
as to the bankrupt's solvency. Having made that statement of his
affairs to Mr. Hardy, Mr. Megaw was referred to him, and thus
was induced to place confidence in the bankrupt still, though his
name had been mentioned in connection with the failure of the
Messrs. Rogerson. There was then a wilful, deliberate misrepresen-
tation by the bankrupt,> in order to get credit when he was in a
state of insolvency, and wh^n he knew that he could not pay his
debts from the proceeds of the contracts. That was not honest
trading. Under the Bankruptcy Code, the fact of a man having
engaged in gambling prevents him passing, or getting a certifi*
VOL.11. 10
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Judgment*
74 CHANCERY REPORTS.
I860. cate; but it is worse than gambling for a man to go into the
. mercantile world, and raise money which he cannot hope to be
In re
LOCKHART. ^^^^ ^0 paj, and to raise it altogether at other people's risk, having
nothing himself to lose. Therefore, on the ground of reckless, pro-
fligate and dishonest trading, and on the ground of wilful misrepre-
sentation, I am prepared to deal with this case. I4 he to pass the
final examination ? Mr. Keman has said^ that there is only one
case in which I refused to pass the final examination, and that that
is a pase where there was an absolute forgery committed, in the
eye of the law — where fictitious names were put on bilb brought
into the market. My jurisdiction to adjourn the final examination
sine die was questioned ; but no appeal was taken to my decision.
I refused to pass the final examination in that case ; I do equally
in this case. I feel that I should not be justified, holding the place
I do, in giving the bankrupt a certificate, as I do not think, looking
at the bankrupt's past conduct and transactions, that he is entitled
to the certificate of the Court for his future dealings. I regret to
have to adopt that course ; for I should be better pleased if I could
deal leniently with the case ; but my duty to the public compels me
to adjourn the bankrupt's examination sine die.
Protection refused.
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CHANCERY REPORTS. 75
1860.
RolU.
IIOMAN V. SKELTON.
(In the Rolls.)
Mau
No
'off. 13.
The cause petition in this matter was filed for the specific perform- In 1827, a les-
sor, as to
ance of a covenant for renewal, contained in a lease of the 20th of whom it was
dtspiited who*
October 1827. The facts of the case, which are very fully stated t^er she was
in the judgment, were shortly as follow : — ^^J lifef'^'or
Daniel M*Neale, being seised for lives renewable for ever of the ^^^^f^j
lands of Proleek (a part of which called Rosabella Proleek was in- hves renewable
^ ^ for ever, made
duded in the lease of the 20th of October 1827), made his will on a lease for her
own life, with
the 22nd of April 1822, whereby he devised all his freehold pro- a covenant
that if she
perty in the county of Louth to trustees, on trust to permit his should be en-
, . , abled, either
daughter Rosabella, who was his heiress-at-law, to receive the rents separately or
- ^ , . , 1 . . , , , in conjunction
and profits for such term, time and space as his said daughter with any other
should remain unmarried, or marry with the consent of both his ^j^^ to'^e^t
trustees ; but in case his said daughter Rosabella should not marry" mUes^^or ^
with consent of one or both of his said trustees, then she was to receive Jj'^K®^ ^JJ^
tnan was there-
only an annuity of £60 for her life, and the residue of the property V G*""**?^*
Sue wouiu, at
was to be vested in Government stock for the benefit of her issue ; the request and
costs of the
lessee, execute
* all such further act or acts, ^., for the purpose of granting the premises to him, for
any term not exceeding three lives, with covenant for perpetual renewal, on payment
of a peppercorn fine on the fall of each life, at the rent thereby reserved, &c., and
the lessee covenanted for himself, his heirs and assigns, with the lessor to accept
such grant. It was decided by the Court of Appeal (7 Ir. Ch. Rep. 388) that the
lessor was tenant in quasi tail.
Semble. — The covenant was a personal covenant, binding on the lessor during
her life, and did not descend with the land.
No claim was made on foot of the covenant during the lifetime of the lessor,
who died in 1854. Judgments had been obtained by the petitioners for the same
debt against the lessee and R., who was Entitled in remainder to the reversion, and
who niterwards became entitled to the lessee's interest. After the lessor's death,
a petition was filed by creditors of R., in the Incumbered Estates Court, for sale
of^he reversion, on the ground that the lessor was only tenant for life, or, if she were
tenant in ^uast tail, that she had not barred the entail. The petitioners were made
parties in that matter as judgment creditors of R. ; and after it was dismissed by
the Court of Appeal, they had, in other proceedings in the Landed Estates Court,
admitted the right of the respondents, who were devisees of the lessor, and had
gone into possession of the lands. — Heid^ that the right to a specific performance
of the covenant had been abandoned, and was barred by laches and acquiescence.
A judgment creditor of a tenant may maintain a suit for a renewal.
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76
CHANCERY REPORTS.
1860.
RoUt,
Statement
and in case of do issue he bequeathed such residue to his right heirs ;
and in case of his daughter dying unmarried or without lawful
issue, he devised Proleek to his nephew, James Wolfe M*Neale,
for life, remainder to Donald M^Neale, fourth son of J. W. M'Neale,
his heirs and assigns, for ever.
The testator died in 1825, whereupon hb daughter Rosabella
entered into possession of the lands of Proleek. Donald M'Neale
died in 1829) intestate, and leaving his eldest brother, Malcolm
M'Neale, his heir-at-law, who died in 1845, having devised his
remainder in Proleek to his brother Robert M'Neale.
On the 20th of October 1827, Rosabella M'Neale demised the
lands of Rosabella Proleek, containing 30a. Ir. 20p., to James
Forde, his heirs and assigns, in trust for J. W. M'Neale, for the
life of Rosabella M^Neale, at the rent of £67* 3s. Id. ; and Rosabella
M'Neale covenanted that if she should be enabled, either separately
or in conjunction with any other person or persons, to grant the
said premises for any longer term than was thereby granted, she
should and would, at the request and proper costs of the said James,
Forde, his heirs and assigns, make, do and execute all such fur-
ther and other act and acts, &c., for the purpose of granting and
releasing the said premises to him or them, for any term not exceed-
ing a term of three lives, with covenant for perpetual renewal on
payment of a peppercorn as a fine on the fall of each life, at and
under the yearly rent thereby reserved, and other covenants in such
cases usual ; and James Forde covenanted for himself and his heirs,
with Rosabella M^Neale, to accept such grant and release, and to
execute a counterpart;
In Michaelmas Term 1847, Samuel Reid obtained a judgment
against James W. M'Neale, and in the same Term he obtained
another judgment against Robert M*Neale. Both judgments were
entered up on a joint and several bond and warrant of attorney,
executed by J. W. M'Neale and R. M'Neale for the same debt.
James W. M^Neale died in 1853, having devised bis intere^ in the
lease of the 20th of October 1827 to Robert M'Neale, who was also
his heir-at-law ; and Rosabella M'Neale died in 1854, without hay-
ing been married, and having devised her interest to the respondents
William Skelton and Philip Skelton.
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CHANCERY REPORTS.
77
1860.
Some creditors of Robert M'Neale presented a petition in the
Incumbered Estates Court, for the sale of the interest devised to
Rosabella M*NeaIe, alleging that she only took a life estate under ^^^^^
the will of Daniel M'Neale, or, if she took an estate in quasi tail, skelton.
that she had not barred it. The petition was, on the 2l8t of April statment
1858, dismissed by the Court of Appeal, who decided (a) that Rosa-
bella M'Neale took an estate in quasi tail, which had been barred
by a renewal of 1 829. Anne M*Neale, Margaret M*Neale and Maria
Frances M'Neale, who were petitioners in this matter, were parties
in the proceedings in the Incumbered Estates Court and Court of
Appeal. A receiver had been appointed in this Court over the
lands, pending the proceedings in the Incumbered Estates Court by
George Crawley, a creditor of Robert M*Nealev After the decision
of the Court of Appeal, the respondents, on the 22nd of June 1858,
obtained an order from Master Lyle to discharge the receiver, and
(the tenants having refused to give up possession) they brought an
ejectment, recovered possession and let the lands. Some other lands,
the property of Robert M*Neale, having been sold in the Incumbered
Estates Court, a question of compensation for injury done to the
lands of Proleek, by the making of a watercourse on the lands so
sold, arose between the creditors of Robert M'Neale and the respond-
ents William Skelton and Philip Skelton; and, from May 1868 to
April 1859, certain proceedings took place, in the progress of which
Mr. £. Mathews, purporting to act as solicitor for the petitioners as
creditors of Robert M'Neale, served notices in which he treated the
respondents as owners of the lands of Rosabella Proleek. Ultimately,
by an order of Judge Longfield, of the 15th of April 1859, £200
compensation was awarded to the respondents. Those proceedings
and notices were relied on by the respondents as an abandonment
by the petitioners of the right claimed in this suit. They are set
out at length in the judgment. On the 15th of February 1859,
Samuel Reid assigned the two judgments to the petitioner Frederick
Homan, in trust for the petitioners Anne M'Neale, Margaret
M'Neale and Maria Frances M*Neale. In February 1860, the
petition in this matter was filed by them, as judgment creditors of
(«) Sec In re M*Neale (7 Ir. Chan. Rep. 388).
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78
CHANCERY .REPORTS.
1860.
RolU.
* V '
HOMAN
V.
SKELTON.
Statement.
James Wolfe M^Neale, for a specific performance of the covenant
contained in the lease of the 20th of October 1827, against William
Skelton and Philip Skelton, the devisees of Rosabella M'Neale,
Richard Lucas, the assignee of Robert M'Neale, and Theobald Forde,
the representative of the lessee of the lease of the 20th of October 1827.
The pnncipal defences set up by the answering affidavits of
the respondents William Skelton and Philip Skelton, and those
to which the arguments and judgment are dii*ected, were, first,
that the petitioners, 8l9 judgment creditors of J. W. M^Neale or
R. M*Neale, could not maintain a suit for the specific performance
of the covenant. Secondly, that the covenant in the lease of the
20th of October 1827 was a personal covenant, intended to be
carried out, if at all, during her lifetime, and was not binding
on her heirs or the respondents her devisees. Thirdly, that after
the order discharging the receiver, the petitioners, and the other
parties acting with them, elected not to take any proceedings to
enforce a renewal, and relinquished all claim, considering that the
lands were not then worth more than the rent of £67* 3s. Id.;
and that the petition had been filed solely because Judge Xiongfield
had awarded so large a sum in respect of compensation for the
watercourse, and on a speculation that, if the suit were successful,
that sum would form a fund for the payment of the petitioners,
as creditors of Robert M'Neale. Fourthly, laches and acquiescence,
and the Statute of Limitations. Fifthly, waste by James W.
M^Neale, in making the watercourse through the lands.
Argument,
Mr. Serjeant Lawson, Mr. Chatterton and Mr. Xeech, for the
petitioners.
Smith V. Shannon (a) is a conclusive authority as to the
right of a judgment creditor to maintain a suit for renewal.
As to the construction of the covenant, the principle of law
is, that when a covenant is attached to the demise, it is im-
material whether the word '* heirs "^ is used. It runs with the
lands, and is binding on the assignee of the grantor and on
the lissignee of the grantee : Spencer's case (b). There were
(a) 3 Ir. Chan. Bep. 462. (J,) 1 Sm. L. C. 23.
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CHANCERY REPORTS. • 79
mutual coyenants in the lease of 1827. A covenant to renew I860.
RolU.
runs with the land : Roe v. Hayley (a) ; Hyde v. Skinner (b). There ^ v^— ^
HOMAN
was no waiver or abandonment of the petitioners' rights, under ^^
the covenant, by the proceedings in the Incumbered Estates Court skelton.
and Court of Appeal ; for whatever part was taken in these pro- Argument,
ceedings by the petitioners was taken by them in assertion of a
different right and in a different character. They were creditors
of Robert M^Neale, as well as creditors of James W. M'Neale*
The interests of their two debtors happened to be conflicting^
but they were not, therefore, bound to elect against which of
them they would proceed. They had a right to make the estates
of both available for the payment of their demand. How then can
it be said that, by proceeding to realise .a fund for the payment
of the debts of Robert M^Neale, they abandoned their right to
proceed against the estate of James W. M'Neale? The abandon-
ment or waiver of a contract must be clearly proved, to be a defence,
even in a Court of Equity. The acts relied on must be done with
the intention to waive the contract : Clarke v. Moore (c).
The respondents did not recover possession of the lands, under
the ejectment, until November 1858. Until then, there was no
possession adverse to the petitioners. There was no refusal by
the respondents to grant the renewal; and that distinguishes this
case from Walker v. Jeffreys {d)y Beaphy v. HiU {e\ Morgan v.
Gurly (f)^ and Southcome v. Tke Bishop of Exeter {g\ Waste, or a
breach of covenant by the tenant, is not a valid defence to a suit for
renewal : Trant v. Dwyer (A) ; Brown v. The Marquis of Sligo (t ).
Mr. Brewster^ Mr. Sullivan and Mr. M*Blain^ for the re-
spondents.
The covenant in the lease of the 20th of October 1827 was
(a) 12 Eaut. 464. (b) 2 P. Wma. 136.
(c) IJ. & L. 123. (rf) I Hare. 347.
(0 2 Sim. & St. 20. (f) 1 Ir. Chan. Bep. 482.
(g) 6 Hare, 213.
(A) 1 Dow., N. S., 125; S. C, 2 BU., N, S„ 11.
(0 10 Ir. Chan. Rep. 1.
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80
CHANCERY REPORTS.
1860.
RolU,
HOMAN
V,
8ILELTON.
Argument*
Nov. 12,
Judgfnent,
not binding on the heirs of Rosabella M'Neale. It was binding
on her during her life, and the lessee might, during that time,
have compelled her to perform it; but it conferred no obliga-
tion binding her heirs. No action on it could be maintained at
Law against them, and, a fortiori^ no suit for specific performance
could be maintained in Equity : Piatt on Covenants, pp. 448 ahd
449* The covenants appear to have been framed designedly with
that view ; fof , in the covenant by the lessee, his heirs are
bound, whereas, in the covenant by the lessor, the word " heirs"
is omitted. It ih therefore a mere personal equity, attaching on
the conscience of the party, and not descending with the land :
Sug, Ven, Sf Pur.^ pp. 612, 613; Kent v. Stoney (a); Jones v.
Kearney (b.) The doctrine of laches, as established by Morgan v.
Gurley (c), Heaphy v. Hill (rf)j and Southcome v. The Bishop of
Exeter (tf), forcibly applies to this case. No claim was made
during the lifetime of Rosabella M^Neale, from 1827 to 1854; '
and, after her death, not only was no claim made, but the claim
was abandoned and proceedings were taken, which amounted to a
disclaimer of the title of the reversioners: Doe d. Phillips v.
Rawlings (f).
The Master of the Rolls.
The petition in this case has been filed by Frederick Homan, as
assignee of a judgment, entered on a bond and warrant of attorney,
as of Michaelmas Term 1847, against James Wolfe M'Neale, at suit
of one Samuel Keid, and also as assignee of a judgment, of equal
date, entered on the same bond and warrant, against Robert
M'Neale, for the specific performance of a contract to execute a
lease for three lives, with a covenant for perpetual renewal, which
contract is contained in a lease made by Rosabella M^Neale to
James Forde, and which bears date the 20th of October 1827* The
judgments were assigned in February 1859 by Samuel Reid to
Frederick Homan. Frederick Homan was a trustee for the other
petitioners. James Forde, the lessee in the said lease, was a trustee
(<t) 9Ir. Chan. Rep. 249.
(c) 1 Ir. Chan. Bep. 482.
(e) 6 Hare, 213.
(6) 1 Dr. & War. 134.
(<0 2 Sim. k St. 20.
09 4 C. B. 200.
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CHANCERY REPORTS.
SI
for James Wolfe M'Neale. The facts of the case, so far as they I860.
RoUs,
appear to me to be material, are as follow: — Rosabella M'Neale, ^ — -v — '
HOMAN
being seised of the lands of Proleek, in the county of Louth, by ^^
indenture, dated the 20th of October 1827, and made between the skelton.
said Rosabella M'Neale, of the one part, and James Forde (since judgment.
deceased), of the other part, demised to the said James Forde, and
to his heirs, part of the townland of Prqleek, in the county of Louth,
containing 30a. Ir. 23p., plantation measure, to hold unto the said
James Forde, his heirs and assigns, from the 1st day of November
1826, for the life of the said Rosabella M^Neale, at the yearly rent
of £67. ds. Id. sterling, payable half-yearly, on the days therein
mentioned ; and the said Rosabella M'Neale did thereby covenant,
proihise and agree, to and with the said James Forde, his heirs and
assigns, that if she, the said Rosabella M^Neale, should be enabled,
either separately, or in conjunction with any other person or per-
sons, to grant the said premises for any longer term than was
thereby granted, she the said Rosabella M^Neale should and would,
at the request and proper costs of the said James Forde, his heirs
or assigns, make, do and execute all such further and other act and
acts, deed and deeds, for the purpose of granting and releasing the
said premises to him or them, for any term not exceeding a term of
three lives, with covenant for perpetual renewal, on payment of a
peppercorn as a fine on the fall of each life, at and under the
yearly rent thereby reserved, and other covenants in such cases
usual ; and the said James Forde did thereby for himself, his heirs
and assigns, covenant and agree, to and with the said Rosabella
M'Neale, to accept such grant and release, and to execute a
counterpart thereof, as aforesaid. This b the covenant or contract
the specific performance of which is* sought in this suit. It will be
observed that the rent reserved by the said lease was upwards of £2
an acre, which will account for the delay of thirty-three years in
seeking to enforce the specific performance of the ■ contract, and
which contract wx>uld never have been sought to be enforced, except
for the order of Judge Longfield, of April 1859, to which I shall
hereafter advert.
It appears, from the decision of the Court of Appeal, in the case
VOL. 11. 11
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CHANCERY REPORTS.
1860.
RoiU,
HOMAN
V,
8KELTON.
Judgment.
of In re M^Neale (a), that, at the time of the execution of the lease
of 1827, Rosabella M'Neale was seised of an estate in quasi tail,
under a head-lease for lives renewable for ever, and that such estate
in quasi tail was barred bj a renewal of the head-lease in 1829;
and Rosabella M'Neale, therefore, had th6 power, when she made
the lease of 1827, of barring such quasi estate tail, and making a
sub-lease for lives renewable for ever.
Rosabella M^Neale, being seised m qttasi fee of the immediate
reversion of the lease of the 20th of October 1827, made her will,
in writing, bearing date the 28th day of October 1853, and thereby,
after devising certain other lands situate in the county of Louth, she
devised all the rest, residue and remainder of her real and personal
estates, situate in the county of Louth, to the respondents William
Skelton and Philip Skelton, their heirs and assigns ; and the said
Rosabella M^Neale died in the year 1854, without having altered or
revoked her said will.
The lease of the 20th day of October 1827 was made to the said
James Forde, in trust for James Wolfe M*Neale, since deceased.
James Wolfe M^Neale being, along with his son Robert M'Neale,
indebted to Samuel Reid in the sum of £2510, they, iri order to
secure the repayment thereof, executed their joint and several bond
to Samuel Reid, bearing date the 10th day of November 1847, with
warrant of attorney for confessing judgment thereon, in the penal
sum of £5020, upon which bond the said Samuel Reid, on the^ 20th
day of December 1847, entered a several judgment in the Court of
Queen's Bench, against the said James Wolfe M'Neale, for the said
penal sum, and, ob the same day, entered a several judgment in said
Court against the said Robert M^Neale, for the said penal sum.
By indenture, bearing date the 15th of February 1859 (at which
time the respondents William and Philip Skelton were in possession
of the lands demised by said lease, adversely to any claim of Samuel
Reid, or of the petitioners), and which indenture was made between
tl)e said Samuel Reid, of the first part, the petitioners Anne M^Neale,
Margaret M^Neale and Maria Frances M^Neale, of the second part,
and the4>etitioner Frederick Homan, of the third part, the said Samuel
(a) 7 Ir. Chan. Rep. 388.
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1860.
RolU.
HOMAN
V.
8KELT0N.
Reid assigned to the petitioner Frederick Homan the said judgment
obtained against the said James W. M*Neale, and likewise assigned
to him the said judgment obtained against the said Robert M'Neale,
and memorials of the said assignments were, on the 14th day of
March 1859, duly enrolled. The assignments were in trust for the Judgment,
petitioners Anne M'Neale, Margaret M*Neale and Maria Frances
M^Neale ; and the assignn^nts were made for the purpose of insti-
tuting this suit, as I shall just now explain. James Wolfe M'Neale
died in June 1853 ; and the petitioners allege that his estate, under
the lease of 1827, and the contract therein contained, was bound bj
the judgment against him.
James Wolfe M^Neale made his will^ dated the 29th of January
1853, and thereby devised all his estate and interest in the [said*
lands to his son, the said Robert M*Neale.
Rosabella M'Neale was then living, and Robert M'Neale, who
was heir-at-law, as well as devisee, of James Wolfe M'Neale,
became entitled to the lands for the life of Rosabella, and to the
benefit of the contract contained in the said lease of October 1827.
The estate and interest in the said lands, of which the said Robert
M'Neale became so seised, was, of course, bound by the judgment
against him, and was alsd bound by the judgment on the same bond
against his father. The petitioners seek to sustain this suit as
assignees of the judgment against J. W. M'Neale, being apprehen-
sive that their having been parties to the proceedings, to which I
shall just now refer, in the Landed Estates Court, as creditors of
Robert M^Neale, might affect their right to maintain this suit.
Robert M^Neale was discharged as an insolvent debtor, in the *
year 1854, and all the estate and interest of the said Robert
M'Neale, in the said lands, became vested in Richard Lucas, who
was appointed assignee by the Insolvent Court. James Forde died
in the year 1837, and his heir-at-law is a respondent. Some mat-
ters are "put in issue by an amendment of the petition, which do
not appear to me to be material, from the view I take of the case.
Several grounds of defence have been set up in the affidavit by
way of answer, filed by the respondents William Skelton and Philip
Skelton, the devisees of the said Rosabella M'Neale. One, at least,
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CHANCERY REPORTS.
1860.
RoUs.
Judgwient*
of those grounds of defence I consider to be sustainable, and I shall
refer to the facts on which that defence rests.
Rosabella M'Neale claimed to be entitled to the lands demised bj
her by the lease of the 20th of October 1827, under the will of Daniel
M<Neale, dated the 22nd of April 1822. That will is set out in
the report of In re IPNealcy reported 7 /r. Chan. JRep^^ p. 389*
Daniel M'Neale, the testator, was ej^titled to the said lands,
under a head-lease for lives renewable for ever. A question arose
as to whether Rosabella M^Neale was entitled to said lands under
said will, for her life, or in quasi tail. There was a devise. over in
said will, in the event, which took place, of Rosabella M'Neale
dying unmarried, or without issue, to the said James Wolfe M^Neale,
for life, with remainder to Donald M'Neale, fourth son of James
Wolfe M^Neale, his heirs and assigns. Donald M'Neale having
died without issue, Malcolm M^Neale, his eldest brother, became
entitled to whatever estate or interest Donald M'Neale had, as his
heir-at-law. Malcolm M'Neale died in 1845, and devised all his
estate and property to the said Robert M^Neale. James Wolfe
M'Neale having died in 1853, it became the interest of the creditors
of Robert M^Neale to contend that Rosabella M^Neale was only
entitled to a life estate, under the will of Daniel M^Neale; and
some of those creditors having filed the petition in the Incumbered
Estates Court, set forth in the answering affidavit, an absolute order
for a sale of the part of the lands of Proleek, demised by the lease
of the 20th of October 1827, was made, the creditors not claiming
that the lease should be sold, but insisting that it had determined, on
the ground that Rosabella M^Neale was only tenant for life, and that
the said lease, and the contract sought by this petition to be enforced,
had determined by her death, and that Robert M'Neale was entitled
to the lands, discharged of said lease and contract, as devisee of the
heir-at-law of the. remainderman Donald, to whom the devise was
made by the will of 1822. This case was, of course, wholly incon-
sistent with the claim now made by the petitioners, so far as they
are judgment creditors of Robert M'Neale ; the present claim being,
that they are entitled to have a specific performance of the con-
tract in said lease, entered into by Rosabella M^Neale ; and their
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case in the Landed Estates Court being, that the lease and the eon-
tract were at an end by her death.
The respondents William Skelton and Philip Skelton^ who in-
sisted, in the Landed Eata1;^s Court, that Rosabella was tenant in
quasi tail, and not tenant for life, and that she had barred the quasi
estate tail in 1829, and that they were entitled, under his will,
obtained a ruling from Judge Longfield, dated the 13th of Novem-
ber 1857, whereby he ordered that the order for the sale should be
discharged, and that the petition, as to the lands called '* Rosabella
Proleek," which were the lands demised by the lease of 1827, and
also as to certain other lands, should be dismissed. That decision
was affirmed by the Full Court, and ultimately by the Lord Chan-
cellor and Lord Justice of Appeal, who decided that Rosabella
M*Neale was tenant in quasi tail, and that she had barred the
entail ; and that the said William Skelton and Philip Skelton, two
of the respondents in this matter, were entitled to said lands, under
her will. The order of the Court of Appeal was made on the
21st of April 1858, and the case is reported, as I have stated, in
the 7 Ir. Chan. Rep. The present petitioners, Anne M'Neale,
Margaret M^Neale and Maria Frances M'Neale, were parties to the
said appeal, and bound thereby. In what right they were parties
I do not know ; but the ingenioua plan of obtaining assignments of
the two judgments in February 1859, after the decision of the Court
of Appeal, was to endeavour, by suing in a new right, to avoid the
effect of their proceedings in the Incumbered Estates Court and
Court of Appeal. Now, of course, it was open to the present peti-
tioners, and to the other creditors of Robert M^Neale, to have
applied to the Landed Estates Court, to sell the estate and interest
of Robert M*Neale, under the lease of 1827, and the covenant
therein contained, after the title of Rosabella M'Neale was estab-
lished by the decision of the Court of Appeal ; but I presume that
they thought it then unadvisable to do so, having regard to the
lease having demised only 30a. Ir. 23p., and the rent reserved being
£67. 3s. Id.
George Crawley, one of the petitioners in the Incumbered Estates
Court, had filed his cause petition in the Court of Chancery, on or
I860.
RoUs.
ROMAN
V.
SKELTON.
Judgment.
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86 CHANCERY REPORTS.
1860. about the 12th of January 1857, against Robert M'Neale and
RoUm.
> , ' Richard Lucas, his assignee under the Insolvent Act, for the pur-
pose of raising, out of the estate and interest in said lands, sought
8KELTON. to be sold in the Incumbered Estates Court, the amount of a certain
Judgmeru, judgment debt due by the said Robert M'Neale ; and, on the 17th
of August 1857, one Robert Fagan was appointed receiver over the
said estate and interest, the property of the respondents in this
matter, William and Philip Skelton, who had not been made parties
to such proceedings. The said Wiliam Skelton and Philip Skelton
having discovered such proceedings, they moved before Master
Lyle to discharge the receiver. Master Lyle made an order on the
said motion, on the 22nd of June 1858, and thereby ordered that the
receiver should be discharged, and that he should pay to William and
Philip Skelton the rents which he had received out of the said lands,
and he ordered the petitioners in the said matter to pay the costs of
the motion. The respondents William and Philip Skelton were
unable, notwithstanding the said order, to obtain possession of the
said lands, and were obliged to bring ejectments in the Superior
Courts against the occupying tenants, and were put to large costs
and expense, which have never been repaid. The said respondents
William and Philip Skelton having, at last, got possession, and no
claim having been put forward for a performance of the covenant in
the lease of 1827, they let the lands to one Launcelot Coulter, at the
rent of £75, for one year from the 1st of November 1858. The
title of the said William and Philip Skelton was thus distinctly
adverse to the claim of any persons claiming under the covenant in
the lease of October 1827. The said William and Philip Skelton,
. on the 1st of June 18599 caused advertisements to be inserted in
the * public newspapers, and ciiused hand-bills to be posted, for a
letting of the said lands, from the 1st of November 1859, and which
advertisements were inserted and hand-bills posted before the letter
of the 11th of June 1859, to which I shall just now advert. It is
difficult to understand on what principle, on the facts I have now
stated, Robert M^Neale's creditors, including the petitioners, wholly
disavowing, in the Incumbered Estates Court and before the Court
of Appeal, the title of RosabeUa M^Neale to make the lease of 1827,
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CHANCERY REPORTS. 87
for a longer period than her own life, and wholly disavowing the 1860.
title of the landlords and reversioners, the present respondents Wil-
liam and Philip Skelton, and allowing the receiver to be discharged
hj Master Lyle's order, and an ejectment to be brought, and posses-
sion to be taken thereunder, prior to the 1st of November 1858, and Judgment*
allowing a lease to be made by the said William and Philip Skelton,
that those creditors should now allege that the right to enforce perform-
ance of the contract subsists. In fact there was no intention to seek a
renewal; all notion of the kind was abandoned, until some circum-
stances took place in the Incumbered Estates Court, which led to
this petition, which I shall now state.
Certain other lands, the property of Robert M^Neale, were sold in
the Incumbered Estates Court, and a sum of £1008. 10s. 4d., part of -
the proceeds of such sale, was retained by said Court, as and for the
value of the mill-race or watercourse constructed through the lands
pf Proleek, for the purpose of indemnifying and compensating the
owners of said lands for the damages occasioned thereto by reason of
the said watercourse ; and the said respondents William and Philip
Skelton, having been declared the owners of that part of said lands
of Proleek called Rosabella's Proleek, which are the subject of this
suit, and which were demised by the lease of October 1827, they
thereupon became entitled to a proportional part of the said sum, in
respect to that portion of the said mill-race which runs through
said part of the lands called Rosabella's Proleek. Edward Mathews,
as solicitor for the petitioners who claimed in the Incumbered ^
Estates Court as creditors of Robert M'Neale, and who is solicitor
for the petitioners in this suit, caused the solicitor of the said re-
spondents William and Philip Skelton to be served with a notice,
bearing date the 20th of May 1858, of an application to be made to
Judge Longfield, for an order directing that John Neville, Esq.,
C. £. (who made the valuation of the watercourse in respect of which
the sum of £1008. 2s. 6d. was set apart, out of the moneys produced
by the sales in the said matter, as the value of the said watercourse,
and which had been vested in Government stock, and then stood to
the credit of the said matters), should be at liberty to apportion the
said amount (the value of the said watercourse), as between the
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CHANCERY REPORTS.
Judgment,
1860. portion of the lands of Proleek called Rosabella M'Neale's Proleek,
Ro 8. through which the said watercourse ran (t. e., the part demised by
HOMAN ^^^ j^^^ ^^ October 1827), and the other parts of the lands of Pro-
SKELTON. leek through which it also ran, and to report his opinion, as to the
said apportionment, to Judge Longfield ; and that a further appli-
cation would be made to the said Judge, that the amount of such
apportionment, in respect of Rosabella M'Neale's Proleek, should be
paid to the said respondents William and Philip Skelton, who had
been declared entitled to the said , Rosabella M'Neale's Proleek.
Now this notice, served by £. Mathews, then and now solicitor for
the petitioners, distinctly recognised the right of the respondents
William and Philip Skelton to the possession of the lands. The ,
said notice was afterwards withdrawn, and a further notice of
motion was served by the said Edward Mathews, on the 8th of
December 1868 (t. «., after Master Lyle had discharged the receiver,
and after William and Philip Skelton had obtained possession under
the ejectment, and let the lands), on the solicitor of the said
respondents William and Philip Skelton, for an order that John
Neville, Esq., C. E. (who made the valuation of the watercourse, in
respect of which the sum of £1008. 10s. 4d. was set apart, out of
the moneys produced by the sale in the matter of the said petition,
as the value of the said watercourse, and which said sum had been
invested in the purchase of £1008. 2s. 6d. consols, and then stood to
the credit of the said matter), should be at liberty to proceed to
apportion the said amount, as between the portion of the lands of
Proleek called Rosabella M'Neale*s Proleek, through which the
said watercourse ran, and the other parts of the said lands of Pro-
leek, through which it also ran, and to report his opinion, as to the
said apportionment, to Judge Longfield ; iand that further applica-
tion would be made to the said Judge, that the amount of such
apportionment, in respect of Rosabella M*Neale's Proleek (t. «., the
portion demised by the lease of October 1827), should be paid to
\he said respondents William and Philip Skelton, who had been
declared entitled to the said Rosabella M'Neale's Proleek. That
notice of Mr. Edward Mathews, then and now solicitor for the
petitioners, again recognised the right of the respondents to the
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landa, unaffected bj any contract. An order on the said last-men- 1660.
Rolls,
tioned notice was made by Judge Longfield, on the Idth of Decern- ^^.^ —
HOMAH
ber 1858, whereby it was ordered that Mr. John Neville, C. E., ^
and any other sarreyor the said respondents William and Philip skslton.
Skelton might nominate, should be appointed to determine the Judgmmu.
value of the watercourse passing through Rosabella M'Neale's Pro-
leek (t. «., the lands in the lease of October 1827), without refer-
ence to the sum set apart, and that the rest of the motion should
stand over. The said WiUiimoi and Philip Skelton, pursuant to the
said order, appointed Christopher Mulvany, Esq., C. E., as their
surveyor; and the said John Neville and Christopher MulviCtoy
did not agree as to their estimate of the value of the said water-
course passing through Rosabella M'Neale's Proleek (the property
of the said respondents William and Philip Skelton), inasmuch as
the said John Neville valued the same at £13. 15s. only, whereas
the said Christopher Mulvany considered that the said respondents
were entitled to the sum of £200 sterling, or thereabouts, in respect
of the said value.
The said Edward Mathews caused a further notice of motion,
dated the 8th of March 1 859, to be served on the said respondents*
8<dicitor, for an order that, out of the funds in Bank to the credit of
the said matter, the sum of £13. 15s. lOd. cash should be paid to
the said William and Philip Skelton, in respect to the value of that
part of the mill-race which ran through that portion of the lands of
Proleek called Rosabella M'Neale's Proleek. So long as Mr. E.
Mathews, as solicitor for the petitioners, thought that £13. 15s. Od.
was what would be payable to William and Phillip Skelton, he and
his clients were determined not to enforce the contract, but wholly
abandoned all claim in respect of it ; but, on that motion coming on
to be heard before Judge Longfield, on the 15th of April 1859, it
was declared that the said respondents William and Philip Skelton
were entitled to compensation in respect of the mill-race which ran
through that portion of the lands of Proleek known as Rosabella
M'Neale's Proleek, at the rate of twenty- three years' purchase,
upon the valuation of the water-power, and land taken for the
watercourse, as set forth in Mr. Mulvany^s report. This order of
VOL. 11. 12
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CHANCERY REPORTS.
1860.
RolU.
Judgment.
Judge Longfield quite altered the views of Mr. £. Mathews and his
clients. So long as it was supposed that £67. 3s. Id. rent was to
be paid for 30a. Ir. 23p.» and that only £13. 15s. Od. was to be paid
as compensation, it was not contemplated that the covenant in the
lease of October 1827 should be enforced; and the contract was in
fact abandoned, and the respondents William and Philip Skelton
permitted to go into possession ; but a new light broke in on Mr. E.
Mathews and the petitioners, when it was discovered that about
£200 was about to be paid over by Judge Longfield to the said
respondents ; and, accordingly, after said order was pronounced, the
said Edward Mathews, without any notice to the respondents
William and Philip Skelton, applied to Judge Longfield to put a
stay upon said order, for the purpose of enabling him, as solicitor
for the parties interested in the said estate of Robert M'Neale, to
file a cause petition against respondents for the specific execution of
the contract contained in said lease of the 20th of October 1827.
Judge Longfield, in pursuance of such notice, put a stay on the
payment. The first intimation made to the said respondents, of any
intention to enforce said contract, was the letter of said Edward
Mathews, dated the 1 1th of June 1859, in the petition mentioned,
t. «., about twelve months after the receiver was discharged by Mas-
ter Lyle. Mr. E. Mathews, apprehensive, I presume, of the efiect
of his notices, and the acts of himself and the petitioners in the
Landed Estates Court, adopted then the ingenious plan of getting
an assignment of the two judgments, in February 1860, from Mr.
Reid; and Counsel for the petitioners, feeling the difficulty of
getting over the question of laches and abandonment, seek to uphold
the petition, on the ground that the petitioners are assignees of the
judgment against James Wolfe M'Neale, and are not to be affected
by anything which took place in the Landed Estates Court, where
they claimed as creditors of Robert M'Neale, although the judgment
against James Wolfe M'Neale, and the judgment against Robert
M'Neale, are for the same debt, and on the same bond.
The respondents William and Philip Skelton state they believe
that, after the said order of Master Lyle, of the 22nd of June 1858,
had been made, discharging the receiver over the said lands, the
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1860.
BoUs.
said petitioners, and the other parties acting with them, as aforesaid,
did in fact elect and determine not to take any proceedings to
ROMAN
enforce a renewal of the said lease, pursuant to the said covenant, ^^
and did then relinquish and give up all claim thereto; the said skelton.
petitioners considering that the said lands were not then worth more judgment,
than the rent of £67. 3s. Id. per annum, reserved by the said lease.
That statement is, I think, in accordance with the fact ; and they
state, by said affidavit, that they believe the present petition has
been filed against them solely and entirely because Judge Longfield
awarded to them so large a sum, in respect of that part of said
watercourse running through their lands; and they verily believe
that said petition would never have been filed, if the valuation of
the said John Neville, C. E., had been adopted, instead of the valu-
ation of Christopher Mulvany, C. E.; and the affidavit further states
that this petition is founded on the speculation that, if same be suc-
cessful, and if the said respondents William and Philip Skelton are,
in consequence, compelled to execute a lease for ever of said lands
to the petitioners, then the sum so apportioned to the said respond-
ents William and Philip Skelton, by the order of Judge Longfield,
will not be paid to them at all, but same will form a fund for the
payment of the petitioners, as creditors of said Robert M^Neale ;
and the affidavit then submits that the course of proceedings adopted
throughout towards the said respondents by the petitioners, and the
parties in the same interest with them, has been unjust, and such as
ought to disentitle them to the interposition of a Court of Ekjuity in
their &vour.
The first question which arises in this case is, whether the peti-
tions Frederick Homan, as assignee of the judgment against James
Wolfe M'Neale, or as assignee of the judgment against Robert
M^Neole, is entitled to maintain this suit ; t. ^., whether a judgment
creditor of a party with whom a contract has been entered into can
enforce the performance of the contract ? I apprehend that question
is not open for argument in this Court, having regard to the deci-
sion of Lord Plunket, in Smith v. Shannon (a) ; and I therefore
offer no opinion upon it.
The second question arises under these circumstances : — The
(a) 3 Ir. £q. Rep. 452.
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CHANCERY REPORTS.
1860.
RoUs,
Judgment.
respondents Willimn and Phillip Skelton, having obtained an
order from Master Ljle, in the former Chancery canse to which
I have adverted, dated the 22nd of June 1858, to ^Uscharge the
receiver, who had been appointed over the lands in question,
without notice to the said respondents, and the tenants in posses-
sion having refused to give up the possession, notwithstanding
the discharge of the receiver, the said respondents William and
Philip Skelton brought an ejectment, and obtained possession of
the lands, prior to the 1st of November 1858 ; and they then let
the said lands to Launcelot Coulter, for one year from the 1st of
November 1858, at the rent of £75. William and Philip Skelton
being thus adversely in possession, the petitioner Frederick Homan
obtained an assignment of the judgment against James Wolfe
M^eale, and of the judgment agidnst Robert M'Neale, in the
month of February 1859- The question is, whether the petitions
Frederick Homan, who is trustee for the other petitioners, is at
fiberty to purchase a right to file a cause petition in Equity, there
being no doubt, on the facts of the case, that the assignments of the
judgments were obtained for that purpose? In Story*s Equity
Jurisprudence, voL 2, s. 1040c, it is said: — *' Indeed it has been
laid down as a general rule that, where an equitable interest is
assigned, in order to give the assignee a laeus standi injudicio in
a Court of Equity, the party assigning such right must have some
substantial possession, and some capability of personal enjoymenti
and not a mere naked right to overset a legal instrument, or to
maintain a suit." This subject was fully considered in the judgment
of Lord Abinge]^, in Prosser v. Edmonds (a).
In Fry on Specific Performance, pp. 55, 56, where the cases are
collected, it is stated that, '^ Whilst it is clearly lawful to assign a
right at the time undisputed, and if, from circumstances afterwards
discovered, a necessity arises for litigation against third parties, the
assignee may maintain his bill in Equity, yet it is as clearly against
public policy to allow of the assignment of a mere naked right to
file a bilL" Jn the present case, the assignments of the judgments
were obtained by the petitioners in February 1 859, for the purpose
(a) lY&.C.,Ex. Ca«.,481.
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9S
1860.
RoOi.
•f fiHDg this oaose petition, the respondents William and PhiUp
Skelton being then adversely in possession. I do not, however,
consider it necessary to oflfer an opinion on this question, as I am ^^■^^
of opinion, on other grounds which I shall hereafter state, that this skblton.
suit cannot be sustained. , jiiZH^.
The next question which arises is, whether this suit can be sus-
tained, as Rosabella M'Neale did not by the covenant bind her
hdrs? I do not consider it necessary to decide that point, although
I am of opinion that the intention of the contract contained in the
lease of the 20th of October 1827 was, tliat it should be carried out,
if at all, by Rosabella herself, and during her lifetime; a matter of
importance, in considering the question of laches, to which I shall
hereafter advert.
The next question which arises is, whether the petitioners are
precluded by laches or acquiescence, or from the contract having
been abandoned, from sustaming this suit ? The petitioners could
not, of course, have acquired any right to a specific performance, by
reason of the assignments of the judgments in February 1859» if the
right to enforce the performance of the contract had then been lost
by laches, or by the abandonment of the contract by those who,
pre? ions to such assignments, represented the interest in the lease
of the 20th of October 1827- It may be doubtful whether that
lease was a lease for lives renewable for ever, such as was contem-
plated by the Tenantry Act. It was a lease by Rosabella for her
own life, withi a contract that, if she should be enabled to grant the
premises for any longer term than was thereby granted, she the
said Rosabella should and would, at the request and proper costs
of the said James Forde, his heirs and assigns, do such further acts
as would be necessary for the purpose of granting the said premises
to him for any term not exceeding the term of three lives, with
corsnant for perpetual renewal, on payment of a peppercorn as a
fine on the fall of each life. But whether it was a lease within the
Tenantry Act or not, I think the contract cannot now be enforced.
James Forde, the lessee, was ^ trustee for James Wolfe M^Neale,
and the contract was in efiect with James Wolfe M^Neale. Robert
M'Neale, who claimed the reversion derivatively under the limita-
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Judgment,
tions contained in the will of Daniel M*Neale, and his creditors^
insisted, after the death of James Wolfe M*Neale, that Rosahella
M'Neale had onlj a life estate in the lands under the said will, and
that the said Robert M'Neale became, on her death, entitled to the
lands ; and that the said Rosabella had no power to perform the said
contract, having been only tenant for life. Rosabella died in J'ulj
1854. The above claim was relied on, until the Court of Appeal
decided, on the 21st of April 1858, that Rosabella M*Neale had a
quasi esthte tail under the will of the said Daniel M'Neale. Surely,
if a tenant is to be at liberty to allege that the title of the landlord
has expired on his death, and that the tenant has thereupon become
absolutely entitled to the lands in his own right, assuming that such
denial of title in the landlord does not preclude the tenant from
enforcing the contract. Doe v. Rowlings {a)^ Long v. Long{b)t
it is the duty of the tenant, if he seeks to enforce the contract as
against the devisee of the landlord, to proceed without any delay,
after it has been solemnly decided that the claim of the tenant to the
lands is unfounded. If James Wolfe M*Neale, or Robert M'Neale,
had been informed by notice that their right to the performance of
the contract was disputed, they or their creditors could not have lain
by for any such period as has been permitted to elapse in this case.
What has taken place is quite as strong a disavowal of the liability
of the respondents William and Philip Skelton to perform the con-
tract, as any notice which could have been served. The creditors
seek to account for their delay, by the fact that they had insisted
that Rosabella had no title enabling her to perform the contract, she
being, as they alleged, only tenant for life, and that the lease of
October 1827, and the covenant therein contained, expired on her
death in July 1854. The Lord Chancellor and the Lord Justice of
Appeal decided, in April 1858, that Rosabella was tenant in quasi
tail ; and it followed from that decision that Rosabella could, in her
lifetime, have executed the covenant in the said lease of October
1827. The petitioners, in a different right from that in which they
now sue, were parties to the appeal, and, after the decision of that
Court, in effect admitted, in the Landed Estates Court, in the pro-
(a) 4 Com, R Bep. 188. (6) 10 Ir. Ch. Bep. 406.
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1860.
RolU.
HOMAN
V.
SKELTON.
ceediDgs I have detailed, the right of William and Philip Skelton to
the lands, and did not think of raising the question of a right to
enforce the specific performance of the agreement until after Judge
Longfield made the order of April 1859* The receiTer in the former
Chancery cause had been discharged in June 1858. The said re- Judgment,
spondents William and Philip Skelton entered into possession prior
to November 1858, after the ejectment was brought ; and they
entered into a contract for the letting of the lands, for twelve
months, in November 1858; all claim on foot of the contract was
given up: bat when it appeared, by Judge Longfield's order of
April 1859) that a sum of £200 or thereabouts was to be awarded to
the said respondents William and Philip Skelton, as compensation
in respect of the injury done to the said lands by their watercourse,
the petitioners adopted the plan of obtaining assignments of the two
judgments in February 1 859^ for the purpose of laying claim to the
lands, by reason of the covenant contained in the lease of October
1827, and with the view of obtaining the said compensation. I do
not think that, consistently with any principles of Equity, a party
can first dispute his landlord's title, and her right to carry the con-
tract into effect ; then, when the landlord's title is fully established
against him, abandon all claim on foot of the contract, permit his
landlord to enter into possession, and deal with the lands, enter into
a contract with a tenant, and then seek, under the circumstances I
have stated, to set up the abandoned contract, which never would
have been set up but for the decision of Judge Longfield in April
1859.
The principal cases on the subject were referred to by the Lord
Chancellor, in Morgan v. Gurley (a). In that case, his Lordship
adopted the language of Yice-Cbancellor Wigram, in Walker v.
J^ffrey9^ who said, " Heapky v. HiU and Wilson v. Reid are direct
authorities that, if one of two parties, concerned in a contract
respecting lands, gives the other notice that he does not hold himself
bound to perforp, and ^ill not perform, the contract between them,
and the other contracting party to whom the notice is given makes
no prompt assertion of his right to enforce the contract, Equity will
(a) 1 Ir. Chan. Rep. 494.
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consider him as acquiescing in the notice, and abandoning any equi-
taUe right he might have had to enforee the contract, and will leave
the parties to their remedies and liabilities at Law."
Surely what took place in the Landed Estates Court in this case,
and the acquiescence in the proceedings of William and Philip
Skelton, which I have stated, are as strong an intimation to a party
who had far years before controverted his landlord's title, as any
notice which could have been served. Is it to be said, even if this
were a case within the Tenantry Act, that a landlord i;^ho takes
possession of land under an ejectment is to serve a notice un^er
that Act after he has taken possession ? A notice to quit has been
held to be a demand under the Tenantry Act Lord St. Leonards'
observations in Butler v. Portarlington (a) are important in refer-
ence to the proceedings in the Landed Estates Court. But whether
the contract in this case falls within the Tenantry Act or not, a
contract may be abandoned. Where a tenant holds under an agree-
ment for a lease, pays his rent, has possession of the property and the
enjoyment of all the benefits given him by the contract, the efiiuxion
of time will not be a ground for resisting its enforcement. The
tenant, in such case, has not been sleeping on his rights, but relying
on his equitable title, without thinking it necessary to have his legal
right perfected (h) ; but that principle does not apply where the
petitioners allowed the landlord to take possession, four years after
the death of Uie person for whose life the lease was made, and dis-
puted the landlord's title during those four years, adopted a course
in the Landed Estates Court which amounted to an abandonment
of the coptraot, and then, when by the order of April 1869f they
find that it would be their to interest enforce the contract, seek to get
rid of the efiect of the abandonment, by obtaining an assignment of
the judgment against James Wolfe M*Neale ; and they now contend
that, although as creditors of Robert M^Neale, they may have aban-
doned the contract, yet, by the contrivance of getting an assign-
ment of the judgment against James Wolfe M^eale, that, as
creditors of James Wolfe M'Neale, their abandonment of the con-
(a) 1 Dr. & War. 62.
(6) See i^ on Sj»9iafic Performance, 322, 323.
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CHANCERY REPORTS. 97
tract as creditors of Robert M'Neale is not to affect them. That the I860.
RolU,
abandonment of a contract is an answer to a suit for specific per- ' . '
HOMAN
formance is clear. The cases are referred t^ by Lord St, Leonards ^
in his work on Vendors and Purchasers^ 11th ed,, pp. 172, 173. I am skelton.
of opinion that the contract was abandoned in this case ; that the right Judgment.
to enforce the contract is barred by laches ; that what has taken
place amounts to more than mere neglect, and that the petition
ought to be dismissed.
The petition will be dismissed with costs.
BRERETON v, BARRY. Miw 26, 28.
June 1.
Nov. 5.
The petition was filed by Dilliana Brereton to recover an arrear of A, being
tenant for life,
jointure, alleged to have been charged in her favour, on the lands in withapowerto
the petition mentioned, by a settlement executed on the 11th of remainder to
July 1846, previously to her marriage with Ralph Westropp Brere- g^j^ byhia^m
marriage, in
tall, charged a jointure on his second marriage which was not aathorised by the power.
A and B afterwards joined in barring the estate tail, for the pnipose of securing
by mortgage a sum advanced to A. The disentailing deed recited the power and the
charge of the jointure, and by it the lands were conyeved to a trustee, without pre-
judice to the jointure, to such uses as A and B should appoint, and in de&ult of
appointment to ^uch uses as were subsisting before the execution thereof, so as to
secure and restore the former title to the lands. By a contemporeanous deed, to
which the jointress was a party, reciting the power and charge of the jointure, and
the contract for a loan of £1000 to A and B, to be secured by a mortgage dischai^ed
of the jointure, but to the intent only that it should be postponed to the £I(^,
and the interest on it ; and reciting the oonyeyance by the disentailing deed, subject
to the jointure, A and B appointed the lands by way of mortgage to secure the
£1000, and the jointress released the lands from the jointure, with a proviso that the
release should take effect only for the purpose of postponing the jointure to the
£1000. By another deed of the same date, reciting the disentailing deed, and that
the lands were charged with £1000, for the use of A, he granted a rentcbarge to a
trustee for B. — Held^ that the charge of the jointure being void was not confirmed
by the deeds, and that the mortgage deed did not operate as a re-grant of the join-
ture, the intention being merely to postpone the jointure to the mortgage.
A tenant for life had a power, by deed or will, to charge a jointure, not exceeding
£100 a-year, for every £1000 which he should actually and bona fide receive with
his wife. On his marriage, a life estate of his wife, in a chattel mterest in lands,
was conveyed to him for life. The tenant for life received, befpre the date of the
will, about £2000 out of the rents of said \anda,^Ueid, that the charge by his will
of a jointure of £200 a-year was valid if £2000 was received, and that if said sum
was not received the jointure should abate proportionably.
VOL.11. 13
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^ ■ ■ V ■ " '
BKBKBTON
r.
BAKRT.
Statement
98 CHANCERY REPORTS.
ton, or by his will, in pursuance of a power to jointure contained in
a deed of the 31st of January 1818.
A former suit had been instituted for the same purpose by the
petitioner, which was dismissed, on the ground that the power had
not been well executed, as no fortune had been received by Ralph
W. Brereton, which would have authorised him to charge the
jointure (a). But it having appeared, in the progress of the suit,
that certain deeds had been executed on the 22nd- of November
1 850, by Arthur Brereton, under whom the respondents claimed,
which might have operated as a confirmation of the jointure, the
petition in that suit was dismissed, without prejudice to the peti-
tioner filing a further cause petition, stating fully the grounds on
which she sought to establish her claim.
The petition in this matter was accordingly filed. It relied on
the settlement of the 11th of July 1846, as an execution of the
power to jointure, and on the deeds of the 22nd of November
1850, which are fully stated in his Honor's judgment, as preclud-
ing Arthur Brereton, and the respondents who claimed under him,
from questioning the execution of the power by the settlement of
the nth of July 1846 ; and it also relied on the will of Ralph W.
Brereton, as an execution of the power. The will was made on the
18th of March 1855. The following was the part of it relied on as
an appointment : — '* And whereas, by the marriage settlement exe-
cuted by me previous to my intermarriage with my present wife, I
charged all that and those the farms, towns and lands of Loughglass,
&c,, with one annuity or yearly sum of £200, as and for a jointure,
to be paid to my said intended wife, in case she survived me ; now
I hereby ratify said arrangement, and I hereby charge said lands
and premises with the payment of the annual sum of £200 sterling,
to be paid and payable to my dearly beloved wife, as and for her
jointure, in case she should survive me, with full power and lawful
authority for the said Dilliana Brereton, or her assigns, at all times
during her life, to enter into and upon said premises, and, if neces-
sary, to distrain for same, and the distress and distresses there found
to be disposed of according to law, and by the sale thereof to pay
off and discharge any arrears of said annuity or jointure that may
(a) See Brereton y. Barrif (10 Ir. Chan. Rep. 86).
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be doe at the time of such difltrees, and all costs and expenses that
may attend the distraining for same ; and I hereby further will and
devise to my said wife, DiUiana Brereton, said annuity, yearly rent-
charge and sum of £200, as and for her jointure, and to be charged
and chargeable on the premises aforesaid/' The power in the deed
of the 31st of January 1818, the settlement of the 11th of July
1846, and the deeds of the 22nd of November 1850, are fully stated
in his Honor's judgment, and in the report of the former case.
1860.
BoUt.
Statement,
Mr. Serjeant Lawson^ Mr. Bretaster and Mr. Philip Keoghy for
the petitioner.
They contended, ' first, as in the former suit, that, having regard
to the value of the lands of Ardgart, and the rents received thereout
by Ralph W. Brereton, the settlement of the 11th of July 1846
was an execution of the power. Secondly ; that the effect of the
deeds of the 22nd of November 1850 was to convey the estate, sub-
ject to the jointure, so as to validate it, either by way of confirma-
tion, Co. Lii^f p. 295 6, p. 800 a, or by way of re-grant ; that if
a tenant for life, with a power of leasing, make a lease not war-
ranted by the power, and he and the remainderman afterwards
J9in in opening the estate, subject to the lease, the lease is
confirmed: Steele v. Mitchell {a); Stoughton v. Crosbie(b);
and those cases were analogous to the present case. There
was full consideration given by the petitioner for a re-grant of
the jointure : Nixon v. Hamilton (c) ; Lighthume v. WEvoy (d) ;
Fitzmaurice v. Sadlier{e)\ In re HartfortQ). Thirdly; that
the will of Ralph W. Brereton was a due execution of the power.
Such a power might be executed in favour of the wife at different
times, provided the limits of the power be not exceeded : 2 Sug. on
Powers, p. 290, 7th ed. ; Hervey v. Uervey (g). That the will
must be taken to speak from the testator's death; and from 1846
until his death, Ralph W. Brereton had received from the rents of
the lands of Ardgart a sum sufficient to empower him to cliarge the
(a) 3 Ir. Bq. Rep. I.
(c) 1 Ir. £q. Rep. 46.
(e) 9 Ir. Eq. Rep. 595.
(6) 5 Ir. Eq. Rep. 451.
(rf) 4 It. Jut. 179.
(f) 3 It. Jut. 5.
Argument,
(jg) 1 Atk. 561.
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full amount of £200 a-year, or (if be did not receive £2000) to charge
a jointure in proportion to the sum which he had actually received :
Lord TyrconneH v. T^e Duke of Ancaster (a) ; Holi v. HoU (b) ;
Lane v. Page (c).
Mr. WarreUy Mr. Lawless and Mr. James Murphy^ for the
respondents, contended that the valuation of the lands of Ard-
gart, on pretence of which the jointure was charged by the settle-
ment of the 11th of July 1846, was a valuation of the entire interest
in the lands, and not of the petitioner's life interest in them, which
alone was conveyed by that settlement. It was, therefore, not a
bona fide settlement, but an evasion of the condition imposed on the
power, and absolutely void against the remainderman. It could
not, therefore, be confirmed. A voidable deed may, but a void one
cannot, be confirmed: Co. Lit.^ p. 295 b; Massy v. Baiwell(d);
2 Sug. on Powers, p. 308; StronghiU v. Buck{e). Even if
the deed of 1846 were voidable only, the parties were not apprised
of or aware of their rights in the transaction of 1850, and the latter
could not, therefore, have the effect of a confirmation. They
could not confirm what they knew nothing about: Murray v.
Palmer (f) ; Dunbar v. Tredennick (g) ; Roche v. O'Brien (A).
The cases of Steele v. Mitchell^ and Stoughton v. Crosbie, relied
on for the petitioner, were cases where the assets of the tenant for
life were liable on the covenants in the void leases ; and, in order
to avoid circuity, the Court estopped the parties from denying the
validity of the leases : Carpenter v. JBuller (t). The question as
to whether the deed of 1 850 amounted to a re-grant was a question
of intention. The parties had no intention that it should operate as
a re-grant, for they were dealing with what they supposed to be a
valid charge, and postponing it to the mortgage: In re Hartfori (k).
The power might, no doubt, have been executed by the will, but
(a) 2 Ves. 500.
(c) Ambl. 235.
(«) 14 Q. B. 78.
(g) 2 Ball &B. 204.
(0 8 M. & W. 209.
(6) 2 P. Wms. 648.
(<f) 4 Dr. & War. 79.
Cf) 2Sch.&Lef.485..
(A) I Ball & B. 330.
(*) 8 It. Jur. 5.
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the same condition was annexed to its execution by the will as to
lis execution bj the settlement of 1846; and the question still re-
roainedf whether the receipt bj the husband of the rents of Ardgart
was a sufficient compliance with that condition? The receipt of
the income of lands of the wife was not a compliance with that con-
dition, and would not authorise, the charge of the jointure: Doe v.
Milbame (a).
I860.
Rolh.
The Master of the Rolls.
The petition in this case has been filed to recover an arrear of
jointure, claimed by the petitioner to be due to her out of the lands
in the petition mentioned, under the settlement executed on her
marriage with Ralph Westropp Brereton, dated the 11 th of July
1846, or under the will of the said Ralph Westropp Brereton ; and the
questions which arise are, first, whether Ralph Westropp Brereton,
who was tenant for life of said lands, under a deed of the 31st of
January 1818, and who had a power to charge a jointure thereon,
upon the conditions stated in that deed, duly executed such power
by the settlement of the 11th of July 1846? Secondly; whether
it is open to the respondents, who claim under Arthur Brereton, to
raise the question that the power was not duly executed ? having
regard to the provisions contained in certain deeds execdted by the
said Arthur Brereton, who was the eldest son of Ralph Westropp
Brereton by a former marriage, and to which deeds I shall hereafter
particulaiiy refer. Thirdly; whether the power to jointure was
duly executed by the will of Ralph Westropp Brereton?
A former petition was filed by the present petitioner against the
present respondents, to raise the arrears of the said jointure, which
petition was referred to William Brooke, Esq., by the Lord Chan-
cellor, undet the 15th section of thiB Court of Chancery (Ireland)
Regulation Act The will of Ralph Westropp Brereton was not
put in issue or relied on in that suit, the jointure halting been
claimed only under the deed of the Uth of July 1846. Master
Brooke, made an order on the 27th of October 1859» dismissing that
petition, being of opinion that the petitioner had not any fortune
authorising the power to be executed by the deed of July 1846,
(a) 2 T. R. 721.
ArgummU,
Nov. 5.
Judgment.
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Judgment,
having regard to the terms of the deed of 1818, containiDg the power.
The case was brought before me by way of appeal, and I was of
opinion that the Master was right on the point argued before him
and before me ; but I thought there might possibly be a question
whether the respondents, who claimed as volunteers under Arthur
Brereton (the eldest son of Ralph Westropp Brereton by a former
marriage), could dispute the petitioner's claim to the jointure, having
regard to certain deeds executed by Arthur Brereton, and referred
to in the former petition. I, however, did not offer any opinion on
the point, not having then seen copies of the deeds. That question
not having been raised on the former petition, or the question
.whether the will of Ralph Westropp Brereton was a due execution
of the power, and Counsel for the petitioner being desirous to file a
new petition, in which the alleged rights of the petitioner should
be more fully put forward than in the former petition, I made an
order on the appeal motion, dated the 22nd of February 1860,
whereby it was ordered that the motion should be refused with costs,
to be paid by the petitioner to the respondents, the order to be with-
out prejudice to the petitioner, if so advised, filing a further cause
petition, stating fully the ground on which she sought to establish
her claim. The present petition has accordingly been filed.
With respect to the first question, I was of opinion on the former
petition that Ralph Westropp Brereton had not actually and bona
fide received £2000, or any fortune, on his marriage with the peti-
tioner, authorising the execution, by the deed of the 11 th of July
1846, of the power of jointuring given by the deed of 1818. Hav-
ing stated the material facts of the case, so far as they relate to the
first question, when giving judgment on the former petition; and the
grounds of my decision, it is not necessary to repeat them now. The
case is not as yet reported, but it will, I presume be reported
shortly (a).
It is, no doubt, now stated, which was not alleged when the former
petition was heard, that Ralph Westropp Brereton received £200
at the time of his marriage ; and it will be necessary to direct a
reference to the Master to inquire and report whether Ralph Westropp
Brereton received ahy fortune with his wife, previous to or at
(a) Since reported, 10 Ir. Chan. Rep. 376.
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the time of the execution of the deed of marriage settlement of
the 11th of Jaly 1846, exclusive of the conveyance of tHe lands
of Ardgart, as therein mentioned. I continue of the opinion ex-
pressed on the hearing of the former petition, that the convey-
ance of Ardgart to Ralph Westropp Brereton for life (the petitioner
having only a life interest therein) did not authorise the settle-
ment of the jointure of £200 a-year on the petitioner. The
grounds of that opinion are stated in my former judgment
The second question, however, which is raised for the first time
upon the present petition, must be considered. The facU which give
rise to that question are as follow: — Ralph Westropp Brereton
married his first wife, Ellen Gray, in 1826. She died in 1832, leav-
ing Arthur Brereton the younger her eldest son, and two other
sons and three daughters her surviving. Ralph Westropp Brereton
married the petitioner, his second wife, in July 1846, and, in con-
templation of the said marriage, the settlement of the 11th of July
1846 was executed, which purported to exercise the jointuring
power contained in the deed of 1818, in favour of the petitioner.
Arthur Brereton the younger attained his age previous to the 22nd
of November 1860, that is to say, in March 1849* Under the
limitations in the settlement of 1818, Ralph Westropp Brereton was
tenant for life of the lands thereby settled, with remainder to
Arthur Brereton in tail. Ralph Westropp Brereton was desirous to
borrow money, on a mortgage of the said settled lands, and it was
necessary, in order to effect that object, that Arthur Brereton should
join in the mortgage, and it appears to have been considered neces-
sary by the mortgagee that the petitioner should consent to give
priority to the mortgage over her jointure. Four deeds were
accordingly executed, on the 22nd of November 1850. The dis-
entailing deed was made between the said Ralph Westropp Brereton
and the said Arthur Brereton of the one part, and William John
(jreary of the other part. It recites the settlement of the 31st of
January 1818, and that, by indenture of the 11th of July 1846,
Ralph Westropp Brereton, in exercise of the power contained in
the deed of 1818, charged the lands with a jointure of £200 for the
petitioner. It further recites that the said Ralph Westropp Brereton
1860.
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JudgfMnt.
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Judgment,
and Arthur Brereton were desirous that the inheritance in fee-simple
in the lands should be settled in the manner thereafter mentioned ;
and after subh recitals the indenture witnessed that, for the purpose
of barring the estate tail in the lands vested in said Arthur Brereton,
the said Ralph Westropp Brereton, and Arthur Brereton, and the
said Arthur Brereton, with the concurrence of Ralph Westropp
Brereton, as protector of the settlement, conveyed to William John
Geary the said lands (particularly described in the deed), to hold to
said AV. J. Greary and his heirs, discharged of all estates tail, and all
remainders over, ^* and without prejudice to the said yearly sum of
£200, by the said indenture of settlement of the 11th of July 1846
limited and secured to the said Dilliana Brereton during her life,
as aforesaid, and the aforesaid power of enforcing payment thereof^
and to the term of ninety-nine years by the same deed limited
to J. P. Molony and F. Jackson, and the trusts thereof,** upon the
trusts and further purposes in said deed of the 22nd of November
1850 mentioned ; that is to say, to such uses as Ralph Westropp
Brereton and Arthur Brereton should, by any deed or deeds to be
executed as therein mentioned, direct or appdnt ; and, in default of
such appointment, or so far as same shall not extend, to such uses as
were subsisting before the execution of the said presents, ** so as to
secure and restore the former title to the said lands and premises, and
every part thereof.'* There is some obscurity in the last passage, but
the object appears to have been that the remainder in tail to the said
Arthur should not be barred, except so far as the power given by the
said deed to Ralph Westropp Brereton and Arthur Brereton should be
exercised ; and, in fact, Arthur Brereton derived no benefit from uiy
of the deeds, except so far as the £30 a-year provided for him by one
of the said deeds (to which I shall just now refer) was a benefit. The
petitioner was no party to the disentailing deed, but all the deeds of
the 22nd of November 1850 are to be considered together, being part
of the same transaction « A deed of equal date was executed (22nd of
November 1850) by and between the said Ralph Westropp Brereton
and Arthur Brereton, of the first part, Dilliana Brereton (the peti-
tioner), the wife of the said Ralph Westropp Brereton, of the second
part, Anne Williamson of the third part, Frederick Jackson of the
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CHANCERY REPORTS. 105
foorth part^ and Henij H(^kiQip Foster of the fifth part. . Tba^ 1860.
deed recited the indeotore of the Slet of January 181$. It then - J^!^' -
recited an indenture of the 22nd of JT^uary 1844, under which the ^^'^^'^
said Anne TyUliamson ^as entitled to a rentcharge of £70. 186. 9d^ babbt.
charged on said lands in her fiiivour by the said Ralph Westrq>p judgment-
BreretoB. It then recited t^e settlement of the 11th of July 1846,
and the exercise of the jcMuturlng power by BaJph Westropp Brereton,
charging the knds with the jointure of £200 a-year for the peti-
tioner, and the ppwer of distress thereby c^reaAed. It then roeited
that Arthur Brereton attained his age on the 18th of March 1849,
and it .tl^en recited as follows : — '* And whereas the said Ralph
Westr^pp BreretQn and Arthur Brereton, having occasion for the
sum of £1000, have applied to the 8ai4 Henry H. Foster to lend
theut the same, ^hich he ha3 accordingly agreed to, upon having
the repayment thereof, with interest thereon in the meantime,
sec^nred to him by a mortgage of the said lands." The deed then
contaipp a further recital that the lands should be conveyed to the
sfiid mortgagee, H. H. Foster, discharged of Anne Williamson's
^wuity, " aud also free and discharged from the said yearly sum of
£200, by the said indenture of settlement of the 11th of July 1846
limited and secured to the said DiUiana Brereton (the petitioner) and
her asAigna^^as hereinbefore is nientioned ; but as to the said yearly
sum» to the.eod and intent only that the same should be postponed
to the jwid sum of £1000, and the interest thereof, and that the
said sum and interest ahould have priority over and be a prior or
superior inctimbratice thereto, upon or affecting the said landsJ^
It then recited the deed of equal date, barring the estate tail, and the
conveyance thereby to William John Geary, ^'subject, however,
and without prejudice to the said yearly sum of £200, by the said
indenture of the 11th of July 1846 limited and secured to the said
Dilliana Brereton and her assigns during her life, and to the power
for enforcing payment thereof; " and it recited the uses declared by
the said deed of equal date, barring the entail ; and after such reci-
tals the indenture witnessed that, in consideration of the said sum of
£1000 paid to the said Ralph Westropp Brereton and Arthur Brereton
by the said H. H. Foster, the receipt whereof they thereby acknow-
VOL. 11. 14
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106
CHANCERY REPORTS.
I860.
BolU.
Judgment,
ledged, the said Ralph We^ropp Brereton and Arthur Brereton,
in pursuance of the powers in the said disentailing deed of equal
date, appointed the lands (particularly describing them) to the said
H. H. Foster, subject to redemption on the repayment of the £1000
with interest. The indenture then contained a clause whereby the
petitioner released the lands from her jointure of £200 a-year, and
all powers and remedies for securing payment thereof, and she
joined in conveying the lands to H. H. Foster, discharged of the
jointure, and from all powers and remedies for enforcing payment
thereof.
The indenture then contains a proviso and agreement that the
release by the petitioner of her jointure should take effect only for
the purpose of postponing and deferring the said yearly jointure of
£200 to the said sum of £1000 ; so that the £1000 should be taken
to be a prior incumbrance, but not otherwise. That deed was
executed by Ralph Westropp Brereton, Arthur Brereton, Dilliana
Brereton the petitioner, and Anne Williamson. By another deed,
of equal date (22nd of November 1850), and purporting to be made
by and between the said Ralph Westropp Brereton, of the first part,
the said Arthur Brereton, of t^e second part, and Greorge Stamer
Brereton, of the third pkrty after reciting that, under the deed of
the 31st of January 1818, the said Ralph Westropp Brereton hath
become, and now is, entitled to an estate for life, with remainder in
tail male to his son, the said Arthur Brereton, in the said lands
(describing them), the said deed of the 22nd of November 1850
contains the following inaccurate recital of the disentailing deed, of
equal date: — ** And whereas the said Arthur Brereton being, entitled
to an estate in tail of and in said lands, expectant upon the decease
of his father, the said Ralph Westropp Brereton, and, having
attained his age of twenty-one years, by deed, bearing equal date
with these presents, and made between the said Ralph Westropp
Brereton and the said Arthur Brereton, of the one, and William
John Geary, of the other part, the said Ralph Westropp Brereton
and Arthur Brereton, according to their respective estates and
interests therein, did grant, convey and assure, unto the said
William John Geary, and to his heirs, all that and those the said
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CHANCERY REPORTS.
107
several lands thereinafter more particularly mentioned, situate in
the Queen's County, to hold to the said William John Greary and
his heirs, for ever, upon the trusts therein mentioned, freed and
absolutely discharged of and from all estates tail of the said Arthur
Brereton, and all other estates tail, remainders, reversions, condi-
tions and limitations thereinbefore expectant and depending ; " and
then follows, as a recital of the contents of the disentailing deed,
which is not contained therein, " but, nevertheless, charged with
the sums of £1000 and £500, by way of mortgage, for the use of
the said Ralph Westropp Brereton ; and subject thereto, that the
said several lands should go and enure to the use of the said Ralph
Westropp Brereton and his assigns, for and during the term of his
natural life ; and, from and after the decease of the said Ralph
Westropp Brereton (and what next follows is also an inaccurate
statement of the disentailing deed), *' to the use of the said Arthur
Westropp Brereton for life, with remainder to his first and other
sons in tail male, with divers remainders over, as therein men-
tioned." And then follows a recital that, in order to make a
provision for the said Arthur Brereton, during the lifetime of the
said Ralph Westropp Brereton, he the said Ralph Westropp jBre-
reton had agreed to grant to the said Greorge Stamer Brereton
one dear annuity or yearly rentcharge of £30, to be paid quarterly,
to and for the use of the said Arthur Brereton, during the lifetime
of his said father ; and, after such recitals, Ralph Westropp granted
the rentcharge to the said trustee, for the use of the said Arthur
Brereton. Arthur Brereton* does not appear to have executed that
deefd. A fourth deed, of equal date, was executed ; but it does
not appear to affect the questions in this case.
Arthur Brereton died in November 1858, having previously exe-
cuted a further disentailing deed, in April 1858, and thereby limited
the lands to himself for life, and, after his death, to the respondents,
in the manner therein mentioned. The respondents claim as volun-
teers under Arthur Brereton ; and, if he was not at liberty to
dispute the petitioner's jointure, neither are they.
It is contended on the part of the respondents^that the entire amount
of the mortgage money was received by Ralph Westropp Brereton.
1860.
RolU,
Judgment.
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108 CHANCERY REPORTS.
1860. The mortgage deed contains the recital that the £1000 was paid
to the father and son ; and there is a receipt indorsed on the deed.
signed by both^ acknowledging the receipt of the money ; bat it
appears to me that the recitals in the deed granting the annuity
Judgnmt. ^^ ^^^ a-year to Arthur Brereton establish that the £1000 was
for the use of Ralph Westropp Brereton alone, and received by
him. The affidavit of Mr. Geary is also important on this poiot.
Now, of course, if the jointuring power was not duly executed,
and the execution was void, a void instrument cannot be con-
firmed. But it has been argued, on the part of the petitioner,
that the effect of the instruments was, that there was a new
grant of the £200 a-year by Ralph Westropp Brereton and Arthur
Brereton to the petitioner. I have considered this question with
a desire to see sufficient ground to hold that there was a re-grant ;
but I am of opinion that there was not a re-grant, and that the
effect of the deed of mortgage was only to postpone the jointure
for the benefit of Ralph Westropp Brereton, and to enable him
to raise the £1000. It never occurred to the parties, so far as
I can judge, from a careful perusal of the deeds of November 1850,
that the jointure was invalid. The £30 a-year was not granted
to Ardiur Brereton as a consideration for a confirmation or re-grant
of the jointure. The £30 a-year was granted as a consideration
for Arthur Brereton joining his father in the mortgage ; and the
petitioner was only made a party at the instance of and for the
security of liie mortgagee. The affidavit of Mr. Geary is important
in the case. It is impossible, in considering the transaction of
the 22nd of November 1850, not to feel that Arthur Brereton
had not adequate and independent advice. There are observations
in Savory v. King{a\ which are applicable to the present case.
I cannot come to the conclusion that the petitioner joining with
her husband, simply to give precedence to the mortgage over the
jointure, made the deed a confirmation of the jointure, if it was void ;
or a re-grant of a new annuity, which re-grant was not intended by
the son, so far as I can judge, from a perusal of the deeds. The
petitioner's Counsel have argued the question not upon the ground
(a) 5 H. L. Cas. 627.
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109
of coDfirmation; but of a re- grant, feeling the difficulty of con- I860,
tending that, under the circumstances of the case, the execution
of the power, if void, could be confirmed ; but, even if the exe-
cution of the power was not absolutely void, but only impeachable,
I do not think, having regard to the authorities, that the petitioner Judgment,
could sustain this suit, by reason of the provisions in the deeds
of the 22nd of November 1850. Lord Si. Leonards^ in his treatise
on Ven. and JPur., 13th ed., pp. 212, 213, states, " To give validity
to a confirmation of a voidable conveyance, the party confirming
must not be ignorant of his right ; nor, of cdurse, must his right
be concealed from him by the person to whom the confirmation
is made. He must know the transaction to be impeachable that
he is about to confirm ; and with this knowledge, and under no
influence, he must spontaneously execute the deed; and he must
be fully aware not only of the fact upon which the defect of
title depends, but of the consequences in point of law; and he
must in fiict be a free agent, and not under the infinence of the
previous transaction." I, therefore, am of opinion that there was
no confirmation of the petitioner's jointure, and no re-grant of a
new annuity. All that was contemplated, taking all the deeds
together, was, that the jointure was to be postponed to the mort-
gage; but it did not thereby acquire any additional validity.
The remaining question is, whether the will of Ralph Westropp
Brereton operated as an exercise of the power ? It was not con-
tended that the execution of the disentailing deed, of the 22nd of
November 1 850, extinguished the jointuring power. I had occasion
to consider that question in 0*Fay v. Burke (a), and I then stated
the ground Upon which I considered the power was not extinguished.
It is contended, on the part of the petitioner, that in determining
the question whether the will of Ralph Westropp Brereton operated
as an execution of the power, the Court should take into considera-
tion the rents of Ardgart received, from year to year, by Ralph West-
ropp Brereton, before the execution of the will, and that such rents
so received, having, as is alleged, exceeded £2000, Ralph Westropp
Brereton was authorised to charge, by his will, a jointure of £200
(a) 8 Ir. Chan. Bep. 244, 245.
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110 CHANCERY REPORTS.
I860. , a-year. It is contended, on the part of the respondents, that if a
^ ■ V '— * property conveyed to a husband for his life does not authorise the
BBERETON . « «... , , , . - ..
^^ execution of a power of jointuring, that the annual receipts of the
BARRY. property, which would probably be spent as they are received, do
Judgment. ^^ authorise its execution ; and that those annual receipts do not
constitute a sum or sums '* actually and bona fde received" with
the wife, within the meaning of the power. This appears to me to
be a question of some difficulty, and it will be right to ascertain the
amount of the rents of Ardgart received by the late Ralph Westropp
Brereton, previous to the execution of his will. I am of opinion,
however, that if £2000 was actually and bona fide received out of
Ardgart, by Ralph Westropp Brereton, before the execution of
the will, the power was well executed by the will ; and that if a
less sum was received, the power was well executed, to the extei^t of
the sums received ; that is, if less than £2000 was received, the join-
ture of £200 must abate proportionally. It was not necessary, I
apprehend, under a power in the terms of the power in this case, that
the fortune of the wife should have been received at the period of
the marriage. There may be successive executions of a power to
jointure, such as is contained in the deed of 1818, in respect of
successive portions of the wife's fortune received, from time to timt,
by the husband : 2 Sug, on Powers^ 6th ed., vol. 2, p. 310 ; Zaueh
V. Wooltton (a). If £2000, the property of the petitioner, had been
received by Ralph Westropp Brereton, in one sum, shortly before
the execution of the will, I presume it would not be denied that the
jointuring power was well executed by the will. If this be so,
it is difficult to understand why the jointuring power could not be
duly executed, if the £2000 was received in annual or half-yearly
sums, for some years previous to the execution of the will. If por-
tions of the fortune of the petitioner, received from time to time by
Ralph Westropp Brereton, previous to the execution of the will,
from other sources than the rents of the lands of Ardgart, would
have authorised Ralph Westropp Brereton to charge £100 a-year
for the jointure of the petitioner, for every £1000 of such fortune
60 received, it is difficult to understand why the fact of such sums
(a) 2B1UTOW8, 1136.
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CHANCERY REPORTS.
Ill
having been received in respect of the rents of the lands of Ardgart
can make any difference. The power authorised Ralph Westropp
Brereton, when in possession, to charge the lands with a jointure
for such wife or wives as he should many, not exceeding £100
a-year for every £1000 sterling which he should actually and bona
fide receive with such woman or women as he should marry. I do
not, of coarse, intend to intimate an opinion that, if I am mistaken
on the first point, and that Ralph Westropp Brereton was entitled to
charge £200 a-year jointure, by the deed of the 11th of July
1846, valoing the interest in Ardgart, at that date, at £2000, the
annual receipts of the rents of Ardgart would have justified the
charge of a further jointure in respect of such receipts : nor do I
express an opinion that, if £2000 in cash, or in the funds, had been
given to Ralph Westropp Brereton, on his marriage, he could first
charge a jointure in respect of the £2000, and then, at the end
of several years, charge a further jointure in respect of the interest
or dividends received. In holding the will a due execution of the
power to jointure, I assume that the conveyance of Ardgart, by the
settlement of the 11th of July 1846, did not authorise the elercise
of the jointuring power by that settlement.
To prevent the expense of proceeding with the reference which
it will be necessary to direct, and in order to allow the opinion of
the Court of Appeal tp be taken at once on the three questions of
Law, I shall declare on the order my opinion on the first and second
questions, and I shall also declare that if Ralph Westropp Brereton
actually and bona fide received out of the lands of Ardgart, previous
to the execution of his will, the sum of £2000, the jointuring
power was well executed by the wilL If it should appear, on the
reference, that a less sum was received, the jointure should be reduced
accordingly ; but, I presume, when the legal questions are finally
decided, the parties can ascertain the amount received, without pro-
ceeding with the reference. It will be necessary, when directing
the reference, also to direct a reference in respect of the allegation
in the petition, that, upon the occasion of the petitioner's marriage,
she gave to the said Ralph Westropp Brereton £200 in cash, and
much valuable plate and other household effects. I doubt that the
1860.
Rolls.
BRERETON
BARRT.
Judgment,
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112 CHANCERY REPORTS.
plate or household effeots can be taken into consideration, but that
question can be more satisfactorily decided when the value is
known.
As a reference is directed bj the order, the costs must be reserved.
Judgment. ^ ^^^^ make the following order : —
Order, ^^ ^ ordered and declared, bj the Right Hon. the Master
OF THE Rolls, that the conveyance of the lands of Ard-
gart, to which the petitioner was entitled for her life, at
the time of the execution of the marriage settlement bear-
ing date the 11th of July 1846, to her late husband, Ralph
Westropp Brereton, by the said settlement, for his life,
if she should so long live, with a limitation, by the said
settlement, to the petitioner, for her life, if she should sur-
vive the said Ralph Westropp Brereton, did not authorise
the exercise of the jointuring power vested in the said
Ralph Westropp Brereton, under the deed of the 31st of
January 1818, in the petition mentioned, having regard to
the terms of the said jointuring power. And it is further
ordered an^ declared, that the several deeds, dated the 22nd
day of November 1850, did not, nor did any of them, amount
to a confirmation or re-grant by Arthur Brereton, party to
said deeds, of the jointure purporting to be appointed to the
petitioner by the said deed of the 1 0th of July 1846. And
it is further ordered and declared, that if Ralph Westropp
BrereUm, before the execution of his ^ill, dated the 18th
day of March 1855, actually and bona fide received the
sum of £2000, or upwards, after all outgoings, opt of the
rents of the said lands of Ardgart, the jointuring power of
the deed of the 31st of January 1818 was duly executed
by the said will. But it not clearly appearing what the
amount of said rents, so received 1\rj the said Ralph
Westropp Brereton, was, it is further ordered, that it be
referred to William Brooke, Esq., the Master of this Court,
in rotation, to inquire and report the net amount of the
rents of the said lands of Ardgart actuaUy and Uma fide
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CHANCERY REPORTS. 113
received by the snid li<i1ph Westropp BreretOD, from the I860. ,
11th of Jiiij 1846, being the date of the said marriage ^ r-^
BHiEAETOIl
settlement, down to the 18th of March 1855, the date of the
said will, after all outgoings ; and also to inquire and report babry.
the net amount of the rents of the said lands of Ardgart, 'oi^.
actually and h(ma fide received, by the said Ralph West-
ropp Bi-ereton, from the date of the said will to the date
of the death of the said Ralph Westropj) Broreton, after
all outgoings ; but the Court doth not at present d^ide
whether or not the rents received by Ralph Westropp
Brereton, after the date of his will, are to be taken into
calculation. And the petitioner having alleged, by the 28th
paragraph of the petition, that, upon the occasion of her
marriage, she gave to the said Ralph Westropp Brereton
£200 in cash, and much valuable plate, and other house-
hold effects, it is further ordered, that it be referred to the
Master to inquire avid report whether the said petitioner
did, upon the occasion of her marriage, and at what date
particularly, give to the said Ralph Westropp Brereton
£200, or any other and what sum, and whether she gave
to the said Ralph Westropp Brereton, on the occasion of
her marriage^ and at what date particularly, any plate and
household effects, and, if so, the value and particulars of
AQch leqtectively : and the Court doth reserve further
order, and the question of costs.
VOL. llr Iff
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114 CHANCERY REPORTS.
1860.
RottM.
^ , , SCOTT V. SCOTT.
May 1, 4.
Aw. 7.
Bequest of the Maby Keabnet, being entitled to two soma of £400 and £100
interest of
£500 to A for charged on lands, and being possessed of certain Waterford Bridge
lifb, and as to
the principi^, debentures, and other property, made her will on the 24th of De-
cease of A, cember 1882, bj which she desired that all her debts should be
oUieM>ropertY P^^ ^^ ^^^^ ^ convenient after her decease; and she devised aU
meTXitf m2y ^^^ property to two trustees, upon trust to pay certain legacies,
^^^^1^ Y^^ and upon further trust, to pay ** to my sister Catherine Kearney
entitled nnto, the interest of £500 to which I am entitled under my father's
in trust, for the
use, benefit settlement (and which interest is now paid to me by the repre-
andbehoofof" t— / r
Band her chil- sentativcs of my late brother William Kearney and Mr. Alcock
dren, " with-
out the control of Wilton), for and during the term of her natural life; and^as
dling of her to the principal thereof, from and after the decease of my sister,
to'bepiid^hi *^^ as to all other property belonging to me, that I may die
my stdd^^us^ scised and possessed of or entitled unto, in trust and for the use,
SSrSsore^n ^^^^^ ^^^ behoof of my niece Hannah (Maria) Scott and her chil-
^U that"^ ^^^^^ without the control or intermeddling of her husband, and to be
took a life paid at such times and in such manner as my said trustees shall
interest in all '
the piroperty, in their discretion think fit." Mary Kearney died shortly afW-
with remain- ' "^
der to all her wards, leaving her sister Catherine Kearney and her niece Hannah
children bom
in A's lifetime, Scott surviving. Hannah Maria Scott had, at the death of the
before and
after the death testatrix, three children, and she had four children born after the
^12. death of the testatrix. Hannah Maria Scott died on the 16th of
Statement. -A-Ugust 1858; Catherine Kearney died in November 1858. The
interest of the £500 was paid to Catherine Kearney during her
life, and the interest of the debentures was paid to Hannah Maria
Scott during her life.
The petition was filed by James Sheppard Scott, one of the
children of H. M. Kearney, bom at the death of the testatrix;
and the question now disdussed at the hearing was, what interest
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CHANCERY REPORTS.
115
Hannah M. Scott took in the £500 charge and Waterford Bridge
debentures ?
Mr. Brewster, Mr. Blake, Mr. Leslie and Mr. A. Keogh, for
the petitioners, and the children of H. M. Scott, born at the death
of the testatrix.
H. M. Scott, and the children born at the death of the testatrix,
took as joint tenants: WtldPe e(ue(a). The rule in WikTs case
was modified in Crockett v. Crockett (b) ; Audsley v. Horn (c).
But there is nothing in this will to show an intention that the
parent should take only a life estate. The words are, *'to be
paid at such time and in such manner as my trustees shall in their
discretion think fit" To whom was it to be paid ? To Hannah
M. Scott, and her children. They took eo instanti at the death
of the testatrix. It was then that the discretion of the trustees
was to be exercised, and therefore the objects to take were to be
ascertained then: 2 Jarman on Wills, pp. 335, 336; Gordon v.
Whieldon (d) ; Buffar v. Bradford (e) ; Paine v. Wagner (f) ;
Bustard v. Saunders (^) ; Sutton v. Tone (A) ; Mason v. Clarke (t) ;
De Witte v. Be Witte {k) ; Cator v. Cator (/).
1860.
Rolls.
' V '
SCOTT
V.
SCOTT.
Argument,
Mr. Sullivan and Mr. Arthur Close, for the children bom after
the death of the testatrix.
H. M. Scott took a life interest, with a power of appointment
among all her children, whether bom before or after the death
of the testatrix, or she took a life interest with remainder to h^
children as tepants in common : Audsley v. Horn (m) ; Ward v
Gr(^ (n). The trustees are to pay the legacy to the separate use
of H. M. Scott. That has been held to be inconsistent with the
parent taking with her children as joint tenant: Morse v.
(o) 6 Rep. 17. (fi) 2 Ph. 563.
(c) 26 Bear. 195 ; on ^peal, 6 Jar., N. S., 205.
(<0 11 Bear. 170. (e) 2 Atk. 220.
(i) 12 Sim. 184. (g) 7 Bear. 92.
(A) 6 Jut. 234. (0 17 Bear. 126.
(A) 11 Sim. 41. (0 14 Bcay. 463.
(m) Ubi sup, (n) Uhi sup.
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116
CHANCERY REPORTS.
18Q0.
BoUs.
Arpment,
Nov. 7.
Judgment,
Morse (a) ; Mastm ▼. Clarke (6) ; Vauffhan y. The MarquU of
Headford (e) ; Cratlford v. Trotter {d)i French v. French {e).
As to the £500, in which a life interest was beqeathed to Catherine
Kearney, it is clear thiit all the children born at the period of
distribution, t. e^ the death of Catherine Keamej, are entitled:
Jeffery v. De Vitre (f) ; and the same construction must be put
on the word *' children," in respect of the bequest of the Waterford
debentures, which was immediate, without the intervention of a
preceding life estate : Ridgeway v. MunkiUrieh (g)^
Mr. Serjeant Lawion and Mr. Tandy^ for the trustees.
The Masteb of tub Rolls.
The questioa which arises in this case is, the construction to
be put on the will of Maiy Kearney deceased, dated the 24th of
December 1838. Mary Kearney was possessed of a sum of £400
and. of another sum of £100, which constitute the £500 in her
will mentioned, and was also possessed of certain Waterford Bridge
debentures; and being so possessed, she luade her will, bearing
date the 24th of Decemb^ 1833, wheioby she devised all her pro«
perty to two trustees, on the trusts therein mentioned; and after
certain trusts not material in the present case, the will ^proceeded
to declare the trusts thus : ^* and, to my sister Catherine Eeamey,
the interest of £500, to which I am entitled under my father's
settlement (and which interest is now paid to me by the repre-
sentatives of my late brother William Kearney, and Mr. Alcock
of Wilton), for and during the term of her natural life ; and as
to the principal thereof, from and after the decease of my sister,
and as to all other property belonging to me, that I may die
seised and possessed of, or entitled unto, in trust and for the use,
benefit lUid behoof of my niece Hannah Scott and her children,
without the control or intermeddling of her husband, and to be
(a) Sim. 485.
(c) 10 Sim. 639.
(e) 11 Sim. 257.
(*) 17 Beav. 126.
(J) 4 Mod. 361.
09 24 Beav, 296,
(si) I Dr. & War. 84.
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CHANCERY REPORTS.
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paid at soch times and in sach manner as my said trustees shall
in their discretion think fit.**
The testatrix died a few days after the date of her will, leaving
her sister the said Catherine Kearney; and her niece Hannah
Maria Scott (in the will called Hannah Scott), her surviving.
Hannah Maria Scott had, at the death of the testatrix, three chil-
dren ; namely, the petitioner James Sheppard Scott, Joseph Scott
and Elizabeth Maria Scott ; but she had four more diildren^ namely,
Hannah Maria Kearney Scott, Sheppard Thomas Scott, Josephine
Mary Scott, and Gilbert Thomas Scott, born after the death of
tlie testatrix. Hannah Maria Scott died on tlie I6th of August
1858, in the lifetime of the said Catherine Kearney, and the
said Catherine Kearney died in November 1858. The interest
o( the £500 was paid to Catherine Kearney in her lifetime, and
the interest of the Waterford Bridge debentures was paid to
Hannah Maria Scott in her lifetime, on the assumption that she
was entitled to such int^ivst for her life, and that none of her
children had any claim during her life ; but of course that cannot
affect the question which arises on the construotiou of the will.
Counsel on the part of the petitioner contended that the peti*
tioner, and his brother' Joseph Scott and his sister Elizabeth
Scott, who were the only children bom in the lifetime of the
testatrix, became entitled, on her death, with their mother Hannah
Maria Scott, to the Waterford Bridge debentures, either as joint
tenants <Nr tenants in common; and Counsel for the petitioner
also contend that the petitioner, and his said brother and sister,
bom in the lifetime of the testatrix, became entitled to the £500
on the death of Catherine Keamey, their said mother having
died in the lifetime of Catherine Keamey t and they contend
that the four children bom after th» death of the testatrix are
entitled to 'no share either of the Waterford Bridge debentures or
of the £500.
I do not concur in the argument of the petitioner's Counsel
that, aecording to the true construction of the will of Mary Kearney,
the petitioner and his brother and sister, born in the testatrix'
lifetime, are entitled to the £500, to the exclusion of the four
I860.
RoU$.
SCOTT
9.
SCOTT.
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CHANCERY REPORTS.
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BoUs.
Judgment,
other children bom during the lifetime of Catherine Kearney^
the tenant for life. Mr. Jarman, in his Treatise on Wills^ 2nd ed.,
vol 2, p. 127, states : — *' Where a particular estate or interest is
carved oat, with a gift of er to the children of the person taking
that interest, or the children of any other person, such gift will
embrace not only the objects living at the death of the testator,
but all who may subsequently come into existence before the
period of distribution. Thus, in the case of a devise or bequest
to A for life, and, after his decease, to the children of B, the
children, if any, of B, living at the death of the testator, together
with those who happen to be born during the lifetime of A, the
tenant for life, are entitled, but not those who may come into
existence after the death of A." The cases referred to by Mr.
Jarman are in accordance with his statement of the law. Now
without reference to the question which arose in Audshy v. Hom^
Ward V. Crray^ and cases of that class, to which I shall just
now refer, I do not understand why any of the seven children
in this case, all of whom were bom during the lifetime of
Catherine Kearney, the tehant for. life, are to be excluded, so far
as relates to the £500.
If Hannah Maria Scott had survived Catherine Keamey, it would
have been necessary, witjh reference to this sum of £500, to have
considered Audsley v. Hom^ Ward v. Gray^ and that class of cases,
in order to determine whether Hannah Maria Scott would have
been entitled to a life interest in the entire of the £500 ; but, as she
died in the lifetime of Catherine Keamey, the decision of that ques-
tion would have been unnecessary, so far as the bequest of the £500
is concemed ; and I do not understand, having regard to the cases
referred to by Mr. Jarman, in the passage I have read from his
work, why you are to exclude any of the seven children, so far as
relates to the bequest of the £500, they all having been bom in the
lifetime of Catherine Keamey, and before the period of distribution*
It will, however, I think, be necessary to decide the question which
arose in Audsley v. i7on», and that Class of cases, as the construc-
tion to be put on the will, as to the £500, may assist in the
constmction of the o^her bequest. With respect to the Waterford
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Bridge debentures, the question which arises is, in some respects,
different from that which arises as to the £500. Where there is an
immediate gift to children (t. e., a gift to take effect in possession
immediately on the testator's decease), it comprehends onlj the chil-
dren living at the testator's decease : Jarman on Wills^ 2nd. ed.,
vol. 2, pp. 126, 127. If, therefore, as to the Waterford Bridge
debentures (the gift of which was preceded by no life interest in
Catherine Kearney), Hannah Maria Scott and her children were to
take either as joint tenants or tenants in common, the four children
bom afler the death of the said testatrix would be excluded ; and it
is, therefore, necessary, as to those debentures, to consider the ques-
tion which has been argued before me, as to the construction of the
general bequest (which included those debentures), "for the use,
benefit and behoof of my niece Hannah Scott, and her children^
without the control or intermeddling of her husband."
It is impossible to reconcile all the cases, as to the effect of a
bequest to a parent, and his or her children. One of the most
recent cases on the subject is Audsley v. Horn (a). In that
case, the words of the will were : — *' I leave Hansard-place to my
daughter Mary Rossiter, during her life, and, at her death, to her
daughter Amelia RoMsUer and Amelia Roseiter'f children ; but, if
they, should die without issue, in that case, the property to be divi-
ded between William Hansard, John Tuttle and John Larry and
Maria Larry." Amelia had no children at the date of the will, or
at*the date of testator's death, or at the date of the death of Mary
Rossiter ; and it was contended that the bequest was either a qua$i
estate tail in Amelia Rossiter, or that it was an estate to Amelia
and her children as joint tenants ; and that, upon that assumption,
as there was no child alive at the time when the gift took effect,
Amelia took the whole absolutely. Sir J; Romilly, in giving judg-
ment, stated, amongst other matters, as follows : — '* Upon a review
of the whole of the cases upon the subject, I think that, setting
aside some contradictory decisions, which it is not very easy to
reconcile, the tendency in modern decisions has been, in cases like
the present, to hold that, in personalty, the bequest gives an interest
(a) 26 Bear. 185.
1860.
Rolls.
SCOTT
V.
SCOTT.
Judgment.
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CHANCERY REPORTS.
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RolU.
JudgmeiiL
for life to the mother, with an interest in remainder to the children.
Thus, in Crawford v. Troiier, a bequest to one and her children
was held to give an interest for life to the mother, with remainder to
her children ; and, in Morse v. Morse^ a bequest of a sum of monej
to the testator's daughter, and her children, was held to give an
interest for li(b in the daughter, with remainder to all her children.
I certainly cannot say that oases are not to be found in the books
which it is not easy entirely to reconcile with this view of the
subject; but I think that the'vidw I have stated is that wliich is
most consistent with the line of modem cases^ and their tendency,
and gederally most in accordance with the spirit and intention of
the testator in those cases. I also find that I have, npon two former
occasions, adopted the same view, viz., in DawMon v. Bourne^ and
in Jeffery v. 2>e VitroT The decision in AucUey v. Horn was
affirmed on appeal (b).
In th^ case of Ward v. Gray (a), reported in the same volume of
Bemoanj a question arose as to the effect of a bequest to a mother
and her childrai. The bequest in the fourth codicil in that case
was, to '^Mrs. Horatia Ward and her children;" and there was a
[ bequest in the fifth codicil to " Mrs. Horatia Ward and her family."
It is strange that, in that case, Audsley v. Horn was not referred
to; nor does Sir J. Romilly appear to have recollected it. In
giving judgment, p. 493, he said : — " There is still one remaining
question ptit to me by this special case, namely, what is the nature
of the interest taken by the plaintiff (I^Irs. Horatia Ward) and her
children in this bequest ? I cannot find any distinct authority cm
this subject; and, following the opinion of Lord Cottenham, in
Croebeti V. Orookeity which this case closely resembles, I am of
opinion, first, that the plaintiff and her children do not take as
joint tenatits ; and next, adopting one of the alternatives suggested
by the Lord Chancellor, I am of opinion that the plaintiff takes an
estate for Hfe in the fund, with a power of appointment amongst her
children, and, in default of appointment, and subject to her life
estate, the children take the estate equally amongst them ; and I
will answer the case accordingly." Now it does not appear to me
(a) 29 L. J., N. S., Ch., ao. (&) 26 Bear. 485.
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BolU.
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V.
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CHANCEBT B£PO|tTS. 121
to be materm, in t\ie pfesept c§8«, to C9iifii4dr wl^ether %\^e view
taken in At^dsff^^ v. Bam^ pv in Ifiw^ v. Grqy, is ^he cor^t yiew ;
because, aecordipg to the op^liQn qf S|f J. 9on^^J, in t^e latter
cf^ t))e power was tfl appoint ^n^^gst tbe cbildrei) ; and, as tbe
wil) of Papnab ^aria Scott exploded many qf t)ie ftbildren, it woiild 4udgmnt,
bave been an invalid appqintpient ; an^, tberefore, I apprehend^
aocordipg to either pf tbe decisjons of Sif J. ]|oi]c^i%, (he seven
children in the present case wqpld take.
Tl^e qbseryatioi^s of Sir J- Bon^iPy, in Ma^of^ ?. Clfifke (a), do
not appe^ very re<M>ncileable with War^ y* Grxij^f as tl^^F^ were
children liying at the dea(h pf tUf^ tiesf^r i^ W(i^4 ^' (?ray. I^
OroctsU y. CfWilutff (b) it was laid do^p by pprd Cp^tenbam, " that
in siich cas0 (f.i^., a gift to A ^^A^ her childrei^) a very slight
ind|catioQ of intention t|ia^ the children should i^t take jpiptly with
the mother has been thongfat sufficient to ^^abl^ tbe Gp^rt t9 decriee
a life jBstate to the mother, with rismainder to her children.^ Now,
in the present case, so far as relate to tfte £60Q^ it is, I tbink» clear,
for the reasons I have already stated, that fpl the cbildjren of
Hannah Maria Scott, bom in the lifetime of Catherine Kearney
(t. €., the sevei) childrep), were entitled to to tbe £500. If this be
so, it has been decided in J^ff^ v. Dt Viire (c), that where there
was a bequest to a married woman, ''for the benefit of hefself and
such children as she then had, or might thereafter have, by her then
hosband, free from the control of her husband,'^ the married woman
took for life, with remainder to such children. Sir J. BomiUy, in
giving judgment, said ** all the childi:!en were ii^tevded to take; and
this 0an only be effect^ by giving a )ife i/itercat jto tb^ mothpr, and
the fond afterwards to the children.^ The argument of the defend-
^Bjt's Gppnsel, which was in effect adopted by Sir <^. BomiHy, ex-
plains the grounds of the decision; and those grounds are just as
applicable to the case of children bom after the death of a testator,
but within the lifetime of a tenant for life of the fund. In the
present case, if it b clear, which I apprehend it is, that, as to the
bequest of the £50.0 after the death of Catherine Kearney, it included
(a) 17 Bear. 126. (6) 2 Phil. 555.
(c) 24 Beay, 296.
VOL. 11. 16
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CHANCERY REPORTS.
1860.
RoJh.
* , *
SCOTT
r.
SCOTT.
Judgment.
children born after the death of the testatrix, and during the lifetime
of the said Catherine Kearney, it appears to me that the case I have
last referred to would apply, and that Hannah Maria Scott would
have been entitled to the interest of the £500 for her life, in the event,
which did not take place, of her surviving the said Catherine, virith
remainder, as to ihi^ corpus of the £500 (after the death of Catherine
and Hannah), to Hannah's children. I may further observe that the
bequest to Hannah Maria Scott, being without the control of her
husband, is in itself, according to one case, an indication of inten-
tion that she should take for life. The cases, however, on this
point conftict: Jarman on WilU^ 2nd ed., vol. 2, p. 335. In
either view of the case, therefore, whether on the authority of the
cases referred to by Mr. Jarman^ in the passage I have read, or on
the authority of the cases of Audsley v. Horn and Ward v. Ort^f^
ahd the case in 24 Beavan^ the seven children are entitled to the
£500. K the seven children are entitled to the £500, there are many
cases which establish that the same construction should be given to
the general bequest, which included the Waterford Bridge deben-
tures. It would, I think be difficult to hold that, as to the £500,
Hannah Maria Scott was entitled for her life, if she survived
Catherine Kearney, with remainder, as to the corpus of the fund, for
her children, and that the same words should receive a different con-
struction as to the general bequest. I am, therefore, of opinion that
the seven children are entitled both to the £500 and to the deben-
tures.
I sent in an order, shortly after the Court rose, last Sittings, de-
claring very precisely in the order the rights -of the parties ; but I
have now stated the grounds of my decision, as it may be satis-
factory to the parties. If there is any desire to' appeal, I shall have
4he date of the order changed to this day.
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CHANCERY REPORTS. 123
1860.
RolU.
JOYCE V. BUTTON. , , „
June \, 2.
Nov. 2.
The facts of this case appear sufficiently from the judgment. The Bj a marriage
setileinent,
question was, whether a post-nuptial settlement, of the l8th of lands were
January 1850, was voluntary or for valuable consideration? trustees, to the
separate use of
Mr. Sullivan and Mr. G. O. Malley, for the petitioners. ^J m-^^k,
Mr. Sherlock and Mr. Laughnan, for the respondent. iSwbSSi^.' ^^
should soirive
Pulverioft V. Pulvertofi (a) ; Heap v. Tongue (b); Blake v. ^^^' ^^ ^
French (c); Roe v. Mitton(d)\ SeoU v. Bell{e); Ball v. Bum- after the death
of the sorviYor
ford (f) ; Clerk v. Netileship (g) ; Currie v. Nind (A) ; Goodright of A and B, in
tmst to conyey
V. Moses (t) ; Parker v. Carter (A) ; BuUerfield v. Heath (I) ; to the child or
Milliken v. irt<ie{(m); Zate^ v. Warren {n)\ Pitzmaurice v. Sad- marriage, as A
... V. .^ , and B should,
^r(o), were cited. 5^ deed or
win, appoint,
and, in de&tdt
The Master of the Rolls. of appoint-
The petition in this case prays that a conveyance, dated the 18th children
of December 1850, made by the father and mother of the petitioners, -^ de^uiU of
issue, to the
suryiyor of A and B. There was issae ; and bj deed reciting that A, in order to
farther the prospects in life of the children, had consented to assign her Ufe estate for
the benefit of the children, and that B, for the like purpose, agreed to assign his re-
yersion, in case he should snryiye his wife. A, for the considerations aforesaid, and
lOs., conyeyed her life interest to trustees, in trust to reoeiye the rents during the life
of A and B, and applj them for the benefit and maintenance, ftc, of the chudren, in
such manner as the trustees might deem sufficient. And it was agreed that the
trustees should haye full power and control oyer the proper^ during the life of A
and B, iree from the control or intermeddling, debts, &c, which at anj time miffht
haye afiected the estate of A and B ; and B coyenanted that, if he should sunriye his
wife, he would, if called on by the trustees, assign his estate and interest to the
trustees, on the said trusts. — Held^ that the children were not within the consideration,
and could not enforce a specific performance of B's coyenant to assign his interest.
(a) 18 Yes. 84. (&) 9 Hare, 104.
(c) 5 Ir. Chan. Bep. 246. (<0 2 Wils. 356.
(e)2Ley. 7a 09 I Pr. in Chan. 113.
(g) 2 Ley. 148. (A) 1 M. A Cr. 17.
CO 2 W. BL 1019. (A) 4 Hare, 409.
(0 15 Bcay. 40a (m) 5 Ir. Eq. Bep. 396.
(«) 6 Ir. Bq. Bep. 299. (o) 9 Ir. Eq. Bep. 395.
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CHANCERY REPORTS.
Horn.
Judgment*
and by William Joyce, to the respondent John Hntton, of certain
premises in the city of Dublin, and also certain articles, dated the
3rd of December 1850, and made by and between the petitioners'
father and mother and the said John Hutton, may be set aside as
fVaudulent and void as ttgainst th^ po^-ht!iptial settlement of the
I6th of January 1850, under which the petitioners claim ; and that
the fath^ of the pfetitiOiliers may specifically perform the cove^iaBt
contaSilied lA tfcte said post-ttfptial Settlement ; or that said convey-
ance, dfkt^d the 18di Vyf D^ember 1850, ftnd said articles of the 3rd
of December 1850, may stand as a security for the repayment to
the said John Button of so much money, if any, as shall be found
to be fairly due to the said John Hutton, on the taking of the neces-
sary accounts; itfnd, accordingly, that afh account may He taken of;
the sums payable to tlie 'sffid ^ohn Hutton, and trf the rents tfnd
pi'^fits which, Wfthout witfti! defkult^ he might haVe received out
of \he said premised, in l!he city of Dublin, ftom the 18th c€ Decem-
bet 1850, a'nd fbv a re-^Onveyance, on "payment of such sum, if
any, as may be due.
The petition is unnecessarily prolix, but the material facts may
be shortly stated: — Previous to the month of April 1831, Eliza
Mary Nicholson was possessed, for a long term of years, of certain
premises in the city of t)ublin, and was seised of other property not
the subject of this firuit;'atid, being so Seised and possessed, a settle-
ment was executed, bearing date the 5th of April 1831, in contem-
plation (k the then iittended marriage of the said Eliza Mary
Nicholson with Thomks Joyce, whereby the said 'Eliza Mary
Nicholson conveyed to the trustees of the settlement certain lands
and premises therein mentiohecl, and, amongst others, the said
premises in the city of Ijlublin, on trust that they should pay the
head-rent, and, subject thereto, for the separate use of the said
Eliza Mary, and, in case Thomas Joyce survived the said Eliza Mary,
on trust to permit and suffer tHe said Xhomas Joyce to receive
the rents for his life, and, from and after the death of the survivor
of the said Eliza Mary and said Thomas Jdycis, on trust that the
trustees shdUld'Conv^y the said lands and preHnises, and said houses
in the city of Dublin, to the child or children of the marriage, in
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CBAm)£ltT REPOHtS. 125
mob shares and proportions as the said Elisa Marr^ Nioliolson and
Tliottias Joyce should, by d^ed or will, appoint ; and, in default of
appointment, for tbe •obUdren^ sbare and ^are al&e ; and, in de&nlt
of isBoe, the said lands, premises and houses were to be oonreyed
to t^ snrviTor of the said Mary Niohokon and Thomas Joyoe. judMem.
The muriage took efibot, and tihiere irere nx children of the
mtHrriage (the petitioners), tfaree of whom are of age and three of
whom are minors. The petitioners allege that the petitioners'
father having, about the year 1849, given himself up to habits of
intoxication, and the petitioners being apprehensive that petitioners'
father woold induce the petitioners' mother to join him in some
securities, and thereby reduce her and the petitioners to indigence,
a case was laid before eminent Counsel, on behalf of the peti-
tioners, who gave "direi^tions that if a deed was executed by
' the petitioners' father and mother, conveying to new trustees their
several and respective estates for life, in said houses, lands and
premises, the same would be preserved for the benefit of the
petitioners. This allegation is denied by the answering affidavit.
The case and opinion would have been important to show the
hanafidei of the plroeeedings. It has not been produced by the
petitioners. There are provisions in the deed of the 18th of
January 1850, calculated to show that this instrument, as alleged
by the respondent, was executed to cover the ptoperQr'from the
creditors of ihe fathtar and mother of the petitioners ; and I pi^
Very little attention to the statements made as to the case and
opinion. If that opinion was handed over to the respondent, with
any other documents, iilteirrogatories might have been exhibited
on the subj^t. On the evidence before the Court, I cannot assume
that it was. If it 'be lost, the solicitor who prepared the same
might (if its loss had been put ia issue and sworn to) hare proved
its contents. The petition states that, in pursminee of sasd
lirrAngement (t. «., the advice of Counsel), a settlement bearing
date the 16ih of January 1850 was executed, by and between
thre petitioners' father and mother, of the first part, John Orpen,
*t^ho vrsts the surviving trustee in the settlement of 1831, of the
second pan, and WiUfaim Joyce and J. G. Douglas, of the third
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CHANCERY REPORTS.
1860.
RolU.
V. — , '
JOTCE
V
HUTTON. '
Judgment.
part. That deed (which is not correctly stated in the petition),
after reciting the title to the lands and premises, and the marriage
settlement of 1831, and the names of the children of the marriage,
recites as follows : — ** And where^ the said Eliza Mary Joyce, in
order to farther the prospects in life of her before-named children,
and also in consideration of the sum of 10s., has consented and agreed
to assign and make over her life estate in the lands and premises
in the before-recited indenture of settlement, to trustees, for
the benefit of her children ; and the said Thomas Joyce, for the
like purpose, and^ also in consideration of lOs., hath also agreed
to assign his reversion in the lands, tenements and premises in the
before-recited indenture of settlement, in case he should survive
the said Eliza Mary Joyce, his wife, to trustees, for the like purpose,
and has consented to be an executing party to these presents."
And after such recitals, the indenture witnessed that Eliza Mary*
Joyce, "for the consideration herein mentioned," and in consider-
ation of 10s. paid to her by the trustees William Joyce and J. S.
Douglas, conveyed her life interest in the said houses, lands and
premises (with the consent of her husband Thomas Joyce) to the
said trustees, on the trusts therein men^oned. The petition
erroneously states that Thomas Joyce conveyed. Thb is not the
case; he only covenanted to convey, as I shall just now state;
and it is strange that there should have been a misrepresentation
of the deed, in so important a particular, in the petition. The
trusts are then declared, that the trustees *' shall have, receive
and take the rents, issues and profits of the herein-mentioned
premises, during the life of the said Eliza Mary Joyce and Thomas
Joyce respectively, and apply the proceeds thereof, after payment
of head-rent and renewal fines payable out of same, to the use
and benefit and for the maintenance, clothing, education and
preferment in life of the before-mentioned children, issue of the
marriage, lawfully begotten on the body of the said Eliza Mary
Joyce, and to be paid and payable at such time and times, and
in such manner, shares and proportions as they the said William
Joyce and James Gttrdiner Douglas (the trustees), their executors, &c^
may deem sufficient for the furtherance and benefit of the before-
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CHANCERY REPORTS.
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meDtioned children of said Eliza Maiy Jo)rce and Thomas Joyce 1860.
respectively." And it was by said deed further agreed that the ^. -, '^'
said trustees should have full power and control oyer the said ^^^^*
houses, lands and premises during the lifetime of Eliza Mary button.
Joyce and Thomas Joyce, " free from the control or intermeddling, Judgmenu
debts or engagements, securities or incumbrances, which at any time
may have affected the estate of Eliza Mary Joyce or Thomas
Joyce, their executors," &c. This provision looks like a plan to
defeat the creditors of Thomas Joyce and Eliza Mary Joyce. A
leasing power is then given to the trustees, to demise, with or
without fine, provided that, if fines were taken, they should be in-
vested in the funds, and the dividends applied on the trusts of the
settlement.
Then follows a covenant by Thomas Joyce, for himself, his heirs,
&C., with the trustees, that, if he should survive his wife, he would,
if called on by the trustees^ assign his estate and interest in the said
houses, lands and premises to the said trusts, on the trusts herein-
before mentioned. Then follows a power to appoint new trustees,
framed in such a manner as to enable the said Eliza Mary Joyce
and her husband to remove the trustees without any cause, and
appoint other trustees ; and indeed the frame of the deed is such
that it was, probably, a mode adopted of protecting the property
from the creditors of Thomas Joyce and his wife ; and I have little
doubt that, if the case and opinion laid before Counsel had been
proved, this would have appeared. The petition states that William
Joyce, one of the trustees (who was the brother of Thomas Joyce),
misapplied the rents, and that the other trustee, Douglas, entered
into the receipt thereof, having served notices on the said William
Joyce, the last of which bore date the 10th of August 1850; and
afterwards the petitioners' father, having intermeddled in the receipt
of the rents, Douglas gave up receiving the same. This is denied
by John Button's answering affidavit, who- says that the agent of
Thomas Joyce and hb wife continued to receive the rents after the
execution of the deed of 1 850. The premises being under ejectment
for non-payment of rent, and the habere executed, the respondent
John Hutton advanced to the landlord £203. 8s. 8d., and paid to
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CHANCEBT REPORT&
186a
JOTCK
V.
HUTTQIL
JudgwimL
Tbomat Joyce idO ; mmI the respondent John HnUoa alleges thul
ke bfts expended Urge sums in keeping 4owa he»d-ren^ i^nd \n
repairs^ and thai he is out of pooket, after all sums received l^ hii^,
£214. Hs. The sehedule to the anawering affidavit shows how this
sum is made oat. The petition then alleges that the recqpto^idept
John Hutton received a anm of £500 on a polioy of in^urance^
which he effected on the life of petitioners' mother, as coUateiral
security with the deed hereinafter mentioned, of the 1 8th qf Dece^i-
ber 1850, and that be undertook that the petitionera should haye the
benefit of such inauranoe: that allegation, however, has not been
proved, and is wholly denied by John Hutton. The petition states
the indenture of the 1 8th of December 1850^ made between the
petitioners' father and mother, of the first part, the said Joyce, of
the second part, and the respondent John Huttou, of the third part ;
whereby the said parties of the first and second p^rta, for th^ alleged
consideration of £20, of which the petition stfttes pnly £16 was
paid, conveyed the said Rouses in Dublin to the said John Hutton
and his heirs, for the unexpired term fi>r which same were beld ;
which deed was registered on the 12th of July 1851. The petition
then states certain articles of agreement, made between petitignei^'
father and the said John Hutton, and which bear date the 3rd of
Dec^ber 1853, whereby it was agreed, to prevent further litigation,
that the rents of the said houses should be divided between
them, share and share alike, the said respondent John Qutton
retaining a certain sum for head-rent^ repi^s and tfULQs, end
collection of the rents i and it was ftirther agreed tbut, upon the
said John Hutton receiving £150, he would iiii^er ^^ possesripn
to the petitioners' father. The petition then alleges thet t)ie
respondent received the £150, by perception of the rents^ he not
having paid the petitioners* fibber the moiety of the rents, but only
a small weekly sum.
The petitioners' mother died on the let, of May 1852, An
afldavit has been made, in reply, by the petitioner Sophia Joyce,
and an affidavit by way of rejoinder by the re^^ondent Jp^n
Hutton, and there are eonfliieting siatem^M^ ee to soi9e of th^
facts ; but I do not consider it necessary to BUd9 ihew, «6« (m tfae
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CHANCBRY REPORTS.
1«9
iepil -gromnd I shall just mm stalt, I oMMider ttiat the petilioii ii
jM)t tittltiaable. The petUionen 4wv6 no present rights under
the marriage settlemeiit «f IJie 5lli of April 1631, as the trosts
im 4heir fiwonr ware, uader said settkment, to ti&e effect only
after the death of their father wmi mother; and their fatber is
still living, and was entitled to a life estate wsder said settlement.
With respect to the peet^nnplMl setdement, «f the 16th of January
ld50, nnder which the petiti— eri can alone ^aim, the Hfe estate
of the petitioners' motiier, •conreyed thereby, has determined by
her dsath ; and the petitimwrs' father di^ not thereby convey hb
life estatd, as erroneeosly stated m the petition, but he covenanted
with the tnistees that, if he ahoold snrvive his wife, he would,
if called ^n hy the trosteee, assign to them his estate and interest
ia the hovses, oa the trusts of the eettiement.
The light of the petitioaers to maintain this suit depends, there^
finwy on their right to enforee ^e speeiffc performance of that
oovenant against the respondent John Hntton, and the right to
enforce soeh pertfiiimaaaee must depend on two questions; first,
whether the post-nwptiBl settlement d£ 1850 was a voluntary deed?
ai!i if it was, tins suit cannot be sustained ; and secondly, whether,
if the said settlement was, as between the father and mother of
the petitioners and the trustees, a deed for valuable consideration,
the petitiooers, who were not within the consideratien, and were
no parties to the oontraet, can enforce the performance of the
eovenant? A merely meritorions consideration, as a provision for
a wife or children after marriage, will not be a sufficient induce-
meai for a Court of Equity to lend its aid in enforcing a voluntary
i^greament or covenant : Jtffr^ f. Jeffrys (o) ; Dillon v. Cop-'
The qsestion, therefore, arises, whether the post-nuptial settle-
ment of 1850, as ikr as the petitioners have a claim thereunder,
was a deed in valuaUe consideration? A conveyance by hus-
band and wife, of the estate of the wife, is, as between the
husband and wife, a deed for valuable consideration, the property
Judgment*
(a) Or. & Phil. lie.
VOL. 1 1 .
(fr) 4tf.&C.647.
17
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130
CHANCERY REPORTS.
1660.
Eolli.
• /— -^
JOTCB
HUTTOH.
JudgwitiU.
passiDg out of both husband and wife, and neither being able
to convey without the concurrence of the other. Muikerry v.
Chinnery (a), ScaU v. Bell {b\ Hewton v. Myers (c), and other
cases, establish that. This case, however, differs in this respect;
that here the wife was, under the settlement of April 1831,
seised for her separate use for life, with remainder to her husband
for life; and the wife, by the post-nuptial settlement of 1860,
conveyed her life estate and her husband covenanted to convey his
life estate to her trustees, if he survived his wife, and if called on by
the trustees. Now, whether the wife conveying her separate
estate, and the husband covenanting to convey his reversionary
estate for life, constituted a valuable consideration between the
husband and wife, there being no statement on the face of the
deed that the conveyance by the wife was in consideration of the
covenant by the husband, it is, in my opinion, unnecessary to
decide, as the petitioners were not parties to the post-nuptial
settlement, nor within the said consideration, assuming that there
was a valuable consideration as l)etween the husband and the wife.
I have already referred to the cases which establish that a
mere meritorious consideration, such as a provision for children
after marriage, will not authorise a Court of Equity to lend its
aid to enforce a voluntary agreement or covenant. It is also
established by authority tbat^ as a general rule, where two persons,
for valuable consideration, as between themselves, covenant to do
an act for the benefit of a third person, that third person cannot
enforce the covenant against the two, although either of the two
might, as against the other : ' CoUyear v. Mulgrave (d) ; Hill v.
Gorman (e) ; Davei^ori v. Bishop (f). No doubt, as stated by
Lord Cottenham in Hill v. Gomme^ <* in all marriage contracts
(«. e., in contracts in consideration of marriage), the children of
the marriage are not only objects of it, but qwui parties to it"
But I apprehend that observation is not applicable to post-
(a) L. & G., Ump. Sag., 222. (6) 2 Ley. 70.
(c) 16 BeaT. 5W. (rf) 2 Keen, 81.
(e) 1 BeaT. 540; S. C, 5 MyL 4 Cr. 25a
09 IT. AC, CO., 451; b. C, I PhU. 698.
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CHANCERY REPOETS-
181
nuptial deeds or.contraots. There is no marriage conilderation
in SQch case; and I do not understand on what ground the peti-
tioners, as children of the marriage, and who are not within the
consideration (if any) of the post-nnptial settlement, and who are
not parties to the contract, can enforce it.
It if not necessary to offer an opinion on a point relied on by
the respondent John Hntton, that the deed of January 1860
was a deed executed by the father and mother to defeat their
creditors, and was not bona fid^. The provisions of the deed
affbrd some colour for the objection, as also the non-production
of the case laid before Counsel, or his opinion. I think it was
imprudent of the petitioners to reject the offer made by Mr.
Sherloekf on the part of the respondent John Button, to take
£100 if the costs were paid, and to re-convey to the petitioners.
Mr. Sherlock stated* and I presume from the circumstances of
the case, correctly, that the petitioners would be unable to pay
the costs to be incurred upon a reference ; and he therefore relied
on the legal objections I have adverted to, in the event of the offer
not being accepted. I am of opinion, on the whole, that the
petitioners have no right to maintain the suit against the respondent .
John Button, unless they could enforce the covenant of their &ther,
contained in the post-nuptial settlement; and I think that, asauming
there was a valuable consideration between the husband and wife
and the trustees in that settlement, which may admit of much
doubt, that the petitioners were not within the conlideration, and
were no parties to the contract, and cannot enforce it. The
petition, therefore, will be dismissed.
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13? CHANCERY REPORTS,
X. K Omirt.
Kantrelr tfiftattif ffatirt.
In the Mstter of the EitAte of
Sir JOHN NUGENT HUMBLE^ Owner and P$Hti0nir,
Deraee of J. T. FITZGERALD.
•Toil. 15.
A enten into Th£ fltota of this caee^ whieh seemt la be a ease of first impressloiiy
an agrreenienty
to the follow- aj^ear follj fron the judgment. The ease came en for argument
'^^That^hr' o^ oh^tion td the final edkedale.
flhonld ezecate
a mortgage,
^^ ^£5 ^' •^- -^ "^^•^^ ** ^^ objection, cited Cn^ r. fW«(«) *
^<^^ ^ Fr#moi«ftT.l>e(lMr0(6); Pwaeh^i^ om SeOlemetUs, p. 550; Wittiam
B and c/ to t. X«ca#(e)( Leckmere v. Bawl of CarHih{d)i Gardiner t.
secure to them ^ ^ ^ ^ ^
an amount aTaaPfMtffkf («)»
awarded, yiz.,
£3120, with
interest at £5
per cent, on Mr. Thomm Hmrrky and Messrs. Owen F. SmM and /SbMlM^
sum of £2600, ^^^ ^^i°» tfenlri^ cited RaundeU T. Sremy (f) ; Creedr. Carey {g)%
frSLX^ M^a<foiST.5iM«iW'W; Cavemry r. Cowenhy (i).
of April 1842,
the date of the award, A giying reasonable proof that he has power to grant snch
mortgage, and that the property to be mortgaged is adequate seenrity lor
it. — Meld, that snch an agreement (though not sufficient to ground a decree
for immediate specific ptrfiaanaDoe) would antfiorise the Coml el Chaooeiy to
order A to select a suffiaent portion of his estates, and make it a security in com-
pliance with the agreement
Held alao, that, afker the lapse of four years and A's doath, it ooald aot he
spedfically enforced acainst the heirs and devisees of A, but would enable B and 0
to institute an administration suit, and claim that a sufficient portion of A's real
' estate be applied in payment of the debt
Held also, that this being so, it was (after a sale in the Landed Estates Court)
to be regurded as a specific charge, taking priority of general creditors, hutjmigne
to other specific charged
(a) 4 Ir. Ch. Bep. 316. (b) 1 P. Wms. 429.
(c) 2 Cox, Ch., 160. (rf) 3 P. Wms. 211.
(s) Coop., C. B., 801. 09 2 Vem. 481.
(if) 7 Ir. Ch. Bep. 295. (A) 1 Moll. 585.
(t) 2 P. Wms. 222.
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CHANCBRY BBPOBT& '
123
HABOBBAtB, J.
The facto of this case are as follows : — The lands sold im Mb
matter wave Ae profperfy of Thamas Josepk Fitzgerald, who is now
daoeasadi and tlMy ilrere derWed by ]um» in part at least, frem Ua
graoid&tber, ThoaBaa FitageraM. In and prior to the year 1841,
diapntea were pending between him and two gentlemen of the name
of QnuL and Heam, and their wiTes^ as to his liability te a consider-
able aom of mooey, in eonseqoence of an alleged breach of trusty
conunittad by his gtandibtber, Thomas Fitagerald ; and bj a ^leei
of ^6 I6tb of NoTcmber 1941, all matters in dispate were referred
to the arbitration of the late Jndge libore and Judge KeaHnge, then
jpaetking at the Bar. I am not informed whether tiiese gentlemen
made any final award, bnt it sufficiently appears that they had
decidad that Mr. Fitogerald should pay t» Mr. Qain and bis wife,
and Mr. Heam and his wife^ in eqnal moieties, £2600, late cuReney,
with SIX years' intexcst> at £5 per cent., in all £3120 sterMng.
Nediiaig fnrtber appears to hare been done vntil the 29th of May
1860^ when a meeting was held between the parilea and tbeir soli*
dter, the restilt of whiek was embodied in a written memorandnm
of ^preement, signed by Mr* Fitigerald and Us solicitor, by Mr.
Quin and the^aolickoar of Mr. Qain, and Mr. Heam i and the qnes^
tion which I have to detvrmine is^ whether this agreement is eapalito
of being enfinnced speeifleaUy against the real estate of Thomaa
Joseph Fitsgerald, er its prodnee now in Court? It is admitted
that the agreement can have no effect against mortgagees of any
part of Mr. Fitagerald^ real estate, or against parties having specific
charges thereon i and effect is somght to be given to it only as
against the heir and deviaaea of Mr. Fitsgerald and his general
efeditorBi The snbatanoe of the agreement may be stated thns« —
*^ It was agreed that Mr. Fitsgerald should execute a mortgage, pay*
dbfcle with interest ai £5 per eent., in fbur years, to Dr. Qafn «m1
Mr. Heam^ to seenra to them the amount awarded, vi^, £9120,
with interest at £5 per osnt. on the prmeipal sum of £2600, hkU
ennrency, from the 27th day of April 184^ the date df such award,
Mr. Fitagerald giving reasonaUe proof that he has power to grant
1860.
Xt. J5. C#itrt.
In re
BUMBUB.
MigmmL
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184
CHANCERY EEPORTS.
1860.
X. E. Ctmrt.
JudgmnL
such mortgage, and that the property to be mortgaged ia adequate
security for it "
Numerous cases were cited, beginning with Freemouii w.
Dedire{a\ principally upon covenants to settle or to charge join-
tures, in some of which they have been held to be specific liens, and,
in others, the contrary, according to circumstances. These cases
generally have reference to after-acquired estates ; and where there
is a covenant to settle such estates, of a particular value, the rule
would appear to be that such a covenant does not specifically aifeot
property purchased, unless there be evidence to show that the pur-
chase was made with a view to its performance. I intimated, during
the argument, that I was disposed to place a construction upon this
agreement which would render that dass of cases only remotely, if
at all, applicable. It appeared, and still appears to me, that the
agreement must be read in one of two ways ; it is -either n mere
general promise by a debtor to his creditor, that he will give seeurity
for the debt to be paid at the end of four years, or it is a ipeoific
agreement, for sufficient consideration, that he will mortgage a suffi-
cient portion of his real property to secure the debt; and show a
good title to it. The former would be vague, and, in thf eye of a
Court of Equity, unmeaning and incapable of enforcement. The
latter would, I think, be a contract sufficiently definite for the Court
of Chancery to enforce, if the debtor should neglect to tender,
within a reasonable time, a sufficient mortgage, with proper proof
of title.
After full consideration, I am disposed to think thut the latter is
the fair construction of this agreement. Th6 term ''mortgage"
implies ordinarily a security on real estate ; and a covenant to make
a mortgage would not be satisfied by a mortgage of a ship or of
personal estate, any more than trustees authorised to lend money on
mortgage would be justified in lending it on a mortgage of goods.
I think also that this agreement imj^rts a mortgage by Mr. Fits-
gerald of a sufficient portion of his then existing real estate, as it is
evident that the agreement was intended to be carried into execu-
tion immediately ; that is, within a reasonable time, and not upon
(a) 1 F< Wmf . 429.
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CHA]NC£BY BEFOBTS.
135
any future contingeiK^y such ts his' porchasiiig other estates. This
view distinguishes this ease from the authorities cited. Now, taking
this as the meaning of the agreement, I do not see any ground for
doubting that a contract between a debtor and his creditor, that the
former will make a mortgage of all his real estate, or of a specific
portion of his real estate, to secure payment of the debt with inter-
est at a future day, is a contract which would be enforced by a
Court of Equity. The case of CrofU t. Feuge (a) was relied on
against this proposition ; but that case was decided upon the. ground
that the creditor had already, by means of a judgment^ substantially
got all that the Court could give him ; and also on the ground that
there was no consideration for the agreement ; and the Court was
influenced by the apparent hardship of subjecting the debtor to a
suit to compel him to make a mortgage, contemporaneously with
another proceeding, to sell the estate on foot of the collateral
judgment. In the present case, however, there is a sufficient con-
sideration in giving time for four years ; and, during the period of
delay, in such a case as I have put, I do not see any obstacle in
the way of enforcing specific performance. Is the case then altered,
when the agreement is not to mortgage all the debtor's estate, or a
defined portion of it, but to mortgage a sufficient portion, to be
selected by the debtor, and proved to be sufficient? It is not difficult
to suggest practical impediments which would occur in the course
of a suit to obtain performance of such an agreement \ but I do
not see any objection in principle to a decree requiring the debtor
to select a sufficient portion, and, in default of his doing so, that the
Master should make the selection. I am bound, however, to say
that^ after the end of the four years, and the death of the debtor,
I do not think that a suit could be sustained against his heir
or devisee, to compel him to make the mortgage. Such a course
would be open to the objection of its being a suit to obtain
security,, with a view to the security being immediately enforced.
The proper course, I think, would be to proceed by way of
administration of the estate, and in the course of such a suit to
claim that a sufficient portion of the produce of the real estate
(a) 4 Ir. Chan. Bep. 816.
1860.
L» Em Court*
' y '
In re
HUMBLB.
JndgmtmL
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136 CHANC£BT BEPOBTS.
1S60. sbonld b« applied to paj the d«bt. That k what th« oredium
tre BOW seeking to do ; and, <m the whole, I am of opinion that,
as against the devisees of Thomas J. Fitagerald, they are entitled
to this relief; and, as the general creditors oan only attaoh the
property whi^ beneficially comes to the heir or devisee, I think
that they are equally bounds The Statnte of Limitations does
not apply, as the consolidated sum to be aeeured by the mortgage
wouid not be payable until May 1864, whioh was within six years
of the filing of the p^ition in this Court. Indeed the petition
was filed within two or three years after the date of the agree-
0)00 1 of 1850, and before the lapse of the four years' delay.
I have had some doubt whether Dr. Quin, by taking a bond and
warrant of Thomas J. Fitzgerald, did not waive his right under
tho agreement. It is not, however, unreasonable to assume that
the bond and warrant were given by the debtor with a view to
the judgBMBt being made a charge on his real estate ; and, as this
has £uled, I think Dn Quin is entitled to fall back- on the agree-
ment /
In the Matter of the Estate of
GEORGE POWELL HOUGHTON, Owner and PeHtioner.
Nov. 15.
A lease for 500 Ths petition in this case was presented by George Powell Hough*
14th Decern- ton, owner and petitioner, for the sale of certain of his property
her 1669, con- , . 1, . \
tained a core- m the oounty of Wexford, including (amongst others) the lands of
nant by the «_. .
lessee, his exe- Kihnanogue, held under an indenture of lease, dated the 14th of
^j^t^„ im^ Deeember 1669» and made between Robert Leigh, of the one part,
assigns, with
the landlord, bis executors, administrators and assigns, not to sell before the first
prefer be made to the landlord, his execntors, administoators and assigns, to the
end that thej might have the fint rpfasal thereof, and pay as mnch as any other
person should bona fid* offer.-^Heid, that is a ooyenant that runs with the land, but .
that it is not a perpetual one ; and, therefore, an assignment of the tenant's interest
haying been made 140 yearsago, it must be presaged that the landlord declined the
ofier or waired his right, and the tenant must now hold discharged from the said
ooTenant
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CHANCERY REPORTS. 137
and Patrick Lambert, of the other part, for the term of 500 years, I860.
at the yearly rent of 408. The lease, in addition to the usual cove- nI — 1^ — ^'
nants, contained one in the following words : — " And likewise the houohton.
said Patrick Lambert, his executors, administrators and assigns, allZIL
doth covenant, promise, grant to and with the said Robert Iieigh,
his executors, administrators and assigns, that neither the said
Patrick Lambert, nor his executors, administrators and assigns,
shall or will assign over or sell their whole interest, or any
part of their interest, in the before demised premises, to any
person or persons whatsoever, before the first proffer thereof be
made unto the said Robert Leigh, his executors, administrators
or assigns (if they, or any of them, be at Rosegarland or near
Eilmanohe at the time of such sale), to the end that they
may have the first refusal thereof, and pay as much for the
same as any other person or persons shall bona Jide offer for the
same.'*
The lessee's interest in the land comprised in the said lease sub-
sequently became vested in the said George Powell Houghton, and
the lessor's interest in Francis A. Leigh. It appeared, during the
course of the case, that an assignment of the lessee's interest had
been executed to a purchaser for value, about 140 years ago, and
that rent had always since that time been received by the persons
representing the lessors, from the persons deriving title under the
said assignment.
Mr. J, B, Walih (with him Mr. /?. Owen) moved, on behalf Argument.
of the said F. A. Leigh, that the rental in the said matter might be
amended, by placing the lands and hereditaments comprised in the
said indenture of lease in a separate lot, and not jointly with any
other lands, in order that the said F. A. Leigh might have the right
of pre-emption reserved to him by the said indenture. The cove-
nant in the lease is not repugnant : Weaiherall v. Geering (a). If
the covenant runs with land, the heir taking the reversion may sue
upon covenants, though not expressly entered into with the lessor
ADd his heirs : Saeheverell v. Froggart {b) ; 2 Piatt on Leatei^
(a) 12 Yes. jon. 504. (6) 2 Sannd. 367.
VOL. n. 18
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138
CHANCERY REPORTS.
1860.
In re
p^ 362 ; Doe d. Ban^d ▼. Hayley (a) ; and assigiiee of reversion
has the same right: 10 Car. 1» seas. 2, c. 4 (Ir,) ; 82 H. 8, e. 34
HOTOHTON. (S^*) s 1 F^urL^ p. 509^ This coFenaiit runs with the knd t 2 PlaU
"^^ en Leases^ p. 400 j iSh^f. K. oih^ P.» p. 485^
Mr../. iio$wr4^ for Geofge PoweU Hong^n, refisrred to SmyM»
Landhrd and Tamnt, pp^ 2»4|; 286. The right of pre-emption in
this case, from the Tory language o£ the eovenani^ is conined to the
irst sale oalj ; aad it m«st nom he prfsomed that^ on the oecaaioa
of tiM assigmeiit of the lessee's interest, so long ago^ the \umot
lefnaed the land, and therdere the right does not now exist. He
referred als» to SUcknr t. Dean (6) ; Keppel ▼. Bailey {e) ; Duke of
Dmdfordy. Trmteoi of Brkisk MnMum{dy ; Sparrow v. Cooper (e>
Mr. R^ ihcen^ in repl j.
Sparrow y. Cooper is not now law: see Sugden on Vendore
and PmrAaeers^ '^PF** P*^ 651 ; Wkaiman y. Oibeon (f) % Mann ▼.
Si9pbene(<s^) ; Tulk r. Moxhay (k).
Nov. 17.,
Judgment.
HABOmXATB, J.
This is an appKeatien on the part of Mr. Leigh, of Roeegarland,
to haTet the rental amended hy placing in a separate lot that portios
of the Eilmannodc property which ia held hy the owner nnder a
lease of the 10th of December 1669} in order that, when the sale has
taken place, Mr. Leigh may exercise an alleged right of pre-emption,
and take the. lease at the same price as is offered for it at the sale.
I am of opinioa that, if the rigfai of pre-emption oxistSi there Is
necessaHly incident to it a right to haTe the lease sold by itself, and
not in conjnaotion with othet ppoperty in which Mr. Leigh has no
interest, and bo ccmresponding right of pre-emption. The question
tnms on the eflfeot of a clause in the lease of 1669) which ia im the
form of a co^eoant hy the lessee Pattick Laaihert, that neither he
(a) 12 East, 464.
(c)2M.&E.517.
(e) H. 4 J. 404.
(9) 15 Sim. 977.
(b) 16 Bear. 161.
(<0 2M.&K.652.
09 9 Sim. 126.
(A) 2 Ph. 775.
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CHANCERY REPORTS. 1»9
•or feds exeootors, ateinbtoaton or MV^St woold assigo OTer or ISSO.
iett their wkole inlerast, or ai^ )pftFt of it, in liie 4emiMd premises, ^— \,. .,/ '
before the ii«t profit be made lo Beben Leigh, hu exoeotMs, houohtom.
sAMniBtralors Or aesigM (if they oar lie be at Bod^arknd at the
tiue), to the e^d that he or they m$j ha^e the tot Missal thereof,
and pay as miieh for tiie eaaie m any other person should htmafide
oftr. After the best <ioiisM0rsti#n that I ean fiTS the mtttter, I
see ao reawn to doubt Ihat, regarded -as a legal eerveaflant, it vk one
fvhkh iviU run mVtk the land, so the* the teaefit of it wifl belong for
tlM time being to Ae owaer «£ the reversion, nad that the burden
of it willlhll «9on the <>wn0r fbr the «ime beingof tba leave, t^ere
I ind a coyenairt rebning to the thwig ^mised, which cannot possi-
bly bs perftnMed^ except by the lessee or the assignee for the tij»e
bfittg^f the leasey and to the benefioial proitof srhioh ao title ean
be made, exeept by the <miisr of the vensrsiMiy it seems to tne thai
to hold that saeh a ooyeuaal does not nm with the land has the
effeet of destivying it altofether. But ivhatever donbt anayiealst
On this teehaioal point, there eannot be moeh doobt that 4he eon-
tratft is one whidh a Court of Squity would enforae against a
pvrcd^ase with netiee ; and in such m ease as this •veiy purchaser is
necessarily m pcapcbaser with aotiee. Iiet ws- sappose for a moment
that a lease ooatains a clause thai the hiadlord anry at any time
determine it, on payment of ft certain sum of moneys can there be
any doubt that such a clause is vaKd, and capable of being enfoteed
at Law if it be in the nature of a coofditiciti, and Eqaityif it bein
tiie form of a covenant or contract P The preaeut eorenant is mora
limited) for it restricts the landlord's power of daiermiaing the lease
to certain events, over which the lessee has the principal oontroL
If I am right in this view, the only question is as to the construction
of the covenant. Is it a general and perpetual covenant that when-
ever the owner of the lease wishes to part with it for money, he
must give the landlord the pre-emption, although he himself was a
purchaser for money ? or is it simply a contract by the lessee that»
whenever he or his representatives or family shall sell the lease^
they shall give the first offer to the landlord ? I may observe tbat^
the latter is a much more probable species of contract than the
Jmigmmu
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140 CHANCERY REPORTS.
I860. former; in fact it ia a natural contract to enter into, whenever a
.1.^.^,....^' Yendor (which in this case Mr. Leigh substantially was) sells to a
HOUGHTON. P^i*^^ ^ ^ \l\vA of favoar. Sach a contract points to a personal
wish on the part of the landlord or vendor to have the property
Judgmm. ^ r v^ J
back at its fair value, whenever the lessee or purchaser ceases, by
himself or his family, to have the personal enjoyment of it. I should
not have entertained any doubt at all that this was the view of the
parties in this case, if it were not for the introduction of the word
« assigns'' into the covenant; in all other respects I should have
considered the language of the covenant as conclusive that the
parties were merely contemplating the event of the property passing
from Lambert and his representatives to a purchaser. There are
no words indicating a plurality or succession of sales ; nothing
pointing to a permanent right, toHes quoHeSj whenever the property
should be sold. I do not think that this very extensive and incon-
venient construction of the covenant should be adopted, merely from
the use of the word ** assigns," particularly as a meaning can be
given capable of satisfying that word, without giving so high a
degree of importance to it. The word *' assigns " may very well
^pply to the case of parties claiming as legatees or volunteers under
the lessee, or persons claiming under a marriage settlement, or any
form of assignment, except that of an assignment upon the sale for
money. On the whole, I think that a purchaser <^ this lease fw
money, the landlord having had the offer of standing in his place, and
having declined it, holds the lease free from this onerous condition.
Applying these principles to the present case, I find that the lease
was sold by Lambert's son (I believe) in 1720, to a purchaser for
money value, under whom Mr. Houghton derives. I must, of
course, now assume either that the landlord then declined the offer,
or waived his right, as there has been a possession for 140 years^
without any attempt to enforce a title on the part of the landlord.
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CHANCERY REPORTS. 141
1860.
L, E, Court.
In the Matter of the Estate of
WILLIAM HUMPHREY RATHBORNE, ROBERT
ST. GEORGE RATHBORNE, GEORGE LOWTHER
RATHBORNE, RICHARD COFFEY and PENELOPE
. COFFEY, hia wife, Otonen and PeHHonen.
Nov. 27.
William Ratbbornb, late of Scribblestown, in the conntj of A lapsed share
of a reddae of
Dublin, father of the several owners and petitioners (except Richard real and per-
sonal estate,
Coffey, the husband of his daughter the said Penelope Coffej), derised, sub-
made his will, dated the 19th day of December 1855, and which, {>ayment of
afier the confirmation of certain settlements and appointments, andtestament-
and the execution of certain powers, contained the following re- S^notTSSte*
siduary gift ; — " And as to all the rest, residue and remainder of *f t^**^^^?^
my property, real and personal, of every nature, kind or description, in exoneration
of the rest
whereof I may die seised or possessed, my will is that the same of the resi-
duary estate,
be sold by my executors hereinafter named; and the produce bat rateably
the«of (sul^ect to the payment of my debt., «.d fimend and ^'^ JL.
testamentary expenses) I give, devise and bequeath the same to StaUmenL
my sons Robert St George Rathbome, St. George Bathbome,
Gorges Lowther Rathbome, and my daughter Penelope Coffey,
share and share alike, as I consider my eldest son William is
sufficiently provided for*''
The aaid testator died in the month of September 1857, without
revoking or altering his said will, and left all the said residuary
devisees him surviving, with the exception of the said St George
Rathbome, who died in the lifetime of his father, the said testator.
Some time after the death of the said testator, the petition was
presented for a sale of the property comprised in the said will,
and the name of the said William Humphrey Rathbome was used
as one of the owners, but without his consent ; but he was aware
of the proceedings, and offered no opposition thereto. The property
of the testator consisted of estates of different tenures ; some in
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1660.
142 CHANC£BY REPORTS.
fee-siinple, some held under leases for lives renewable for tYtr,
In re
and some under chattel leases. The said William Humphrey
BATHBOBNE Rathbomo, one of the owners, was the eldest son and heir-at-law
siaiamLi ^^ ^^ ^^^^ testator, and, on his father's death, became entitled
to the share of the saSd St. George Rathbome, so far as it
consisted of realty. The question arose on the «llooatioii of the
surplus funds, after the payment of all the izicumbranoes ; the
residuary dcFisees contending that the lapsed share of St. G^rge
Rathbome was liable to the payment of debts and incumbrances,
in exoneration of the shares of the other residuary devisees.
Mr. J. E. Waltk (Mr. Rickatd^ with him), Ibr the residuary
devisees.
ArgHmau, In the applkation of aissets in the payment of debts and lega-
cies, estates whioh descend ie the heir, whether aoquired btifbre
, or after the making of the will, are liable to the payment of debts
and legacies, in exoneration of real and personal property, devised
or bequeathed charged with debts. See 2 Jarman on WUb^
p. 327, and the cases therein reflurfed to.
Mr. Robert Oimm, for the heir-at-law. •
TIm cases cited cm ikie other side do not apply; for the rule
laid down in those oases is based on the principle that the in-
tention of the testator should not be diBapp<teted: Ckafim v.
Chapiin (a) ; GoUon v. Handeo^k (6). The testator's intentkm
will not be frustrated if the lapsed sharo beai« debts equally
with the rest of the pesidue. This n not a oaae of one estate
devised, and anotther descended ; it is, in faet, a devise of one
estate for payment of debts, and another, viz., the residue, to
fbnr persons, and out of which residue there is a laps^. The
rule as to real estate descended does not apply to ^ case of a
lapsed devise : BmneU v. Bachelor (c). It is decided that a
lapsed share of real estate, devised subject to payment of debts,
is applicable for payment of debts; in the same order as the
(a) aP. Wms. 368, note. (b) 2 Atk. 424..
(c) 1 V«. jim. 67.
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CHANCERY REPORTS. 143
devised estetM : Wood v. Ordieh (a) ; see also FiiUr v. FUher {h) ; 186a
Pother V. If ordkon^ (c) ; WilUam v. C7iU«y (d). L.E.(^
In rt
BATBBORNS
HASaBBATX, J,
Dm. 1$.
William Bathbome, the testator in this matter, by his wiU, Judgment.
made in 1855, directed that all his property, real and personal,
whereof he ought die seised or possessed, shoald be sold by his
executors ; and the prodace thereof (subject to the payment of
his debts, and funeral and testamentary expenses) he devised and
bequeathed to his sons Robert Rathbome, St. George RathboriM^
Gorges Lowther Rathbome^ and his daughter Penelope, share
and share alikos stating that he considered his eldest son William
suflSdently provided for. One of the four legatees died in the
testator's lifetime, so that his one-fourth, as to the real estate^
descended in Equity to his heir, William RaUibocne, and as
to the personal estate, devolved upon his nexi*<tf-kin. The
question which is now raised is, whether this fourth ia liaUe
to the ^debts of the testator, in exoneration of the other shares
of the residuary estate, or merely rateably with than i I entertain ,
no doubt, either upou prinoiple or upon authority^ that tiie proper
mode of administration is t» pay the dehto out of the genenl
residuary fund, and that the balance ia to be divided into four
shares, and that one of theae' fourths, thus ascertained) is to go,
as I have stated^ to the heir and next-of-kin. By this distribu-
tion, each of the three surviving vesiduary legatees obtains pseqisdy
what the testator gave to hiuk, and he is not placed in any worse
Off. in any better position than he would have been in if there
had been no lapse. The rule of Equity appears to be that,, where
there is a devise or bequest of any t>srticular real or personal
property, the property which is not disposed of and descends to
the heir must indeainify the deyised property from debts; for
the flunple reason that, if any of ihe debts is cast upon the devised
esMe, there is a frustratioa to that extent of the testator's dis-
(a) 3 Sim. & Giff. 126; 8. C, 1 Jur. (£ng.)» N. 8., 584.
(4) 2 Keen, 610. (c) 1 T. & C, C. C, 805.
(^ 3 Yak M5.
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144 CHANCERY BEPOBTS.
1860. position. The testator, in making a devise, is considered to have
>_-^- ^ ' intended such a marshalling of his various assets as will hest
RATHBOBNE o^^ctuate his expressed intention of devising the estate to his
devisee, which means devising the whole estate free from liahilities.
But» from the nature of the case, this doctrine can have no
application to devisees of a fund, which fund is defined as being
the general residue of his estate, subject to the payment of his
debts, and funeral and testamentary expenses. The Court cannot
collect any' intention that any particular estate or any particular
amount should go to the devisees ; and, therefore, any marshalling of
assets cannot be said in any way to contribute to carry into effect
any supposed intention of the testator. I apprehend, therefore,
that there is no principle of Equity which would warrant the view
of the devisees, or place them in a better position than they would
have been in if no lapse had taken place; and I mention this
because it was suggested by Mr. WaUh that the rule of marshal-
ling against the heir, in favour of the devisee, was a merely arbitrary
rule, and was to be carried into effect in all cases, independently
of any other reason for doing so, except that it is the rule. The
case of Williams v. ChiUy decided that an heir taking by lapse
was in no better position than the heir taking after-acquired estate,
or taking what was never intended to be devised ; and this seems
to me to be a natural consequence of the rule. The Court, in
fact, will lay hold of all property which is not disposed of in
fact (whether it is intended to be or not), so as, if possible, to
give the devisee what the testator meant for him, viz., the estate
in its integrity. I cannot, however, reconcile this case with Wood
V. Ordisk (a). In that case there were after-acquired estates
imd a lapsed devise, both of which the heir took. The former
were not sufficient to pay the debts; and then the question arose
whether the latter should bear the debts in exoneration of the
estates which were effectually devised, and the Court decided
in the negative. The case was peculiar, inasmuch as the lapse
was of an undivided share of a remainder expectant on a life estate
created by the will; and the Court considered that, as the life
(a)3&&0.125.
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CHANCEBT BEPOBTS. 145
estate was protected, the remainder in the whole ought to to 1860.
T JS Cotiri
be considered as standing in the same eqoitj, notwithstanding « — 1^ '*
/fi re
that the devise of two shares took effect and the third failed. I kathbobnb
do not think, for the reasons I have mentioned, that either of ,"; —
JudgmeKi.
these cases governs the present. This case more resembles Fisher
y. Fisher (a). They are,' in fact, identical, except that the general
residoarj estate was made a primary fund to pay the debt, so
as to exonerate the personalty. But thai circumstance was im-
material, as the question was not between the realty and the
personalty, but between different shares of the really, as to one
of which there has been a lapse ; and the Court held that all the
shares were in the same position, as the testator merely intended
each share to be a share <^ the surplus after paying debts. In
this case, therefore, the debts must be distributed* rateably over the
real and chattel property, and one-fourth of the residue of the
real must go to the heir, and one-fourth of the residue of the
chattels to the next-of-kin.
(a) 2 Keen, 610. ,
In the Matter of the Estate of
ROBERT WILLIAM JACKSON, Owner and PeHHoner. ^^g^
Jaii 15.
Mb. J. H. RicHABDS moved, on behalf of Sir Capel Molyneux, that in the conrer-
sionofaleaM
there should be inserted in the conversion order of a lease for lives for lives ranew-
renewable for ever, ordered to be sold in this matter, and the lessor's the Landed
interest in which was vested in the said Sir C. Molyneux, and the ^yi make no
lessee's interest in the said R. W. Jackson, a covenant giving to the ^J^JJ^^^ ^J
landlord the right of pre-emption, or, in case of the omission of the ^"^^^J^^
said covenant, that compensation should be given to the said Sir C. ****2SMrt^ *^*
Molyneux, by way of increased rent . hi&. ^^® .^^"
^ ' ^ ^ lordthenghtof
The lease in question was dated the 6th of February 1764, and preemption.
VOL. 11. 19
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146
CHANCEEY REPORTS.
1661.
X. E. CowrL
In re
JACKSON.
Statement,
Argument.
was made between Robert Sibthorpe, of the one part, and John
Watson, of the other part, for three lives, with a covenant for
perpetual renewal thereof, and comprised part of the lands of
Teemore, in the county of Armagh, at the yearly rent of £41. 98.,
with a renewa^ fine of £6. 6s. on the fall of each life. The said
lease contained a covenant on the part of the said John Watson,
in the following words : — *' And the said John Watson, for himself,
his heirs and assigns, doth further covenant, promise and grant,
to and with the said Robert Sibthorpe, his heirs and assigns, by
these presents, that the said John Watson, his heirs and assigns,
shall not sdl or depart with his or their estate therein unto any
person or persons whatsoever, without the consent of the said
Robert Sibthorpe, his heirs or assigns, until he or they have
had a first refusal thereof."
By deed poll, dated the 8th of June 1789, the said John Watson,
in consideration of £400, granted to Robert W. Jackson, the father
of the owner and petitioner, his heirs and assigns, the said part
of the lands of Teemore so demised by the lease of 1764.
The last renewal was dated the I7th of March 1820, and was
made by Thomas Molyneux, grandfather of the said Sir C. Moly-
neux, to the said R. W. Jackson. This renewal was not produced
in Court; and it did not, therefore, appear whether the above-
mentioned covenant was expressly inserted therein, or whether the
renewal was made subject to the subsisting covenants in the original
indenture of lease. Mr. Richards did not press for the insertion
of the covenant, but only for an increase of rent, and referred to the
5th section of the Renewable Leasehold Conversion Act. Counsel
also relied on a case laid before Messrs. Brassington & Gale, sur-
veyors, and their opinion upon it, in which they stated that, from
the peculiar situation of the land (being in the middle of other
property of Sir. C. Molyneux), the omission of the covenant was
a loss to the landlord equivalent to two years' purchase,
Mr. Frazer^ for the owner.
The principle of this opinion is quite erroneous. The lands have
been assigned several thnes; and, it must now be presumed, with
the consent of the lessor.
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CHANCERY REPORTS.
147
LOKOFIBLD, J.
I think that the 5th seotion of the Renewable Leasehold Conver-
sion Act was framed to meet cases like the present, and that, there-
fore, the lessor is entitled to compensation for the non-insertion of
the covenant in the conversion order, so far as he can show that
its omission canses any injury to the reversion. But what is the
amount of injury that its omission causes ? I have every respect
for the opinion of such eminent gentlemen as Messrs. Brassington
and Gale ; but I think that, in this case, they have framed their
opinion on an entirely erroneous basis. The value of this covenant
must be calculated on the ordinary arithmetical principles which
regulate the value of future contingent interests. I think two years'
purchase is an absurd estimate. I must be guided, in my calcu-
lation, by two principles ; firstly, the probability of the occurrence ;
and, I think, it would be found that, in fifty cases, the landlord
might, perhaps in one, have availed himself of a covenant like the
present ; secondly, by what is called, in analogy to the language of
insurance, the discounting principle, and which, in this case, is the
length of time which would probably elapse without the landlord
taking the benefit of the covenant ; as, for example, this covenant
has been in .existence for ninety-six years, without the landlord
having taken advantage of it. I think, therefore, that no sub-
stantial loss will be sustained by the owner of the reversion by
the non-insertion of this covenant. Probably, by reference to a
table of logarithms, the loss might be estimated at a farthing
a-year.*
* By coiuent of the parties the rent was increased by one pexmy a-year.
1861.
Z. E. Court
In re
JACKSON.
Judgment.
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148
CHANCERY REPORTS.
1860.
Ch, Appeal,
Nov, 8, 9.
Wh«re a pur-
chaser is ia
possessioii of
lands, under
an ezecated
convejance,
and part of the
purchase-
money has
been secured
bj a bond, the
purchaser maj
come into
Equity to hare
it employed in
discharge of an
arrear of head-
rent due at
the date of the
conreyance,
and is not con-
fined to his
remedy at
Law» on the
covenants in
his conrey-
ance.
Statement,
Court ot Appeal in tfjbanters.
WOODS V. MARTIN and others.
This was an appeal from a decretal order of the Master of the
Rolls, dated the 11th of June I860. The facts of the case were as
follows: — By indenture, dated 18th of November 1858, made
between Patrick Martin, of the one part, and William Woods, of
the other part, reciting a lease of 1836, firom Greorge Mathews to
John Martin, of a farm of land, in the county of Down, for two
lives, still in being, subject to the yearly rent' of £29. 14s. 3^.,
and that Martin's interest had become vested in the said Patrick
Martin, who had agreed to convey the same to said William Woods,
clear from all incumbrances, for the sum of £350, it was witnessed
that, in consideration of that sum, therein recited to have been paid
by the said William Woods to the said Patrick Martin, the lands
were thereby conveyed, subject to the rents and covenants in the
lease, to the said William Woods ; and said indenture contained
Covenants for title, quiet possession, freedom from incumbrances fu[id
further assurance.
Contemporaneously with the execution of said indenture, Wil-
liam Woo4s paid to Patricia Martin the sum of £100 in cash,
being part of the consideration of £350, mentioned in said inden-
ture ; and William Woods, with Thomas Woods and Isaac Lindsay -
as his sureties, at the same time executed to the said Patrick Martin
their i)ond and warrant of attorney, bearing equal date with said
indenture, in the sum of £500, conditioned for the payment of £250
with interest, the balance of said purchase-money. The petitioner
stated that an unwritten agreement had been made at the time
of the execution of said bond, that William Woods was to be
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CHANCERY BEPOBTS.
149
allowed full credit, out of the amount therebj secured, for auj in-
cumbrances which should appear against .said lands, and especially
for an arrear of rent which the said Patrick Martin admitted to be
due thereon, and which he then represented to the said William
Woods only amounted to a sum of about £40. Immediately after
the execution of said indenture and bond, the said William Woods
entered into possession of said form ; but upon a verbal stipulation
with the said Patrick Martin, that his doing so was not to be consi-
dered as waiving his right to have such incumbrances paid off, and
discharged out of such purchase-money. WUUam Woods, upoir
making inquiry from the reversioner of said lands, as to the amount
of rent due thereout, was informed that it amounted to £90. 9s. 8^. ;
but that, if same were at once paid, a composition of £67 would be
accepted ; but on Woods applying to Patrick Martin, he refused to
pay, or to allow William Woods, any larger sum than £40, which
the reversioner refused to accept, and brought an ejectment for non-
payment of the rent up to the 1st of November 1856, against both
the said William Woods and Patrick Martin, who were duly served
therewith ; upon which he, on the 26th of March 18599 obtained a
decree for said sum of £90. 9s. 8^, with costs, which decree was
executed on the 2drd of April 1859. Patrick Martin not only still
refused to allow the said William Woods to pay off said rent, but
threatened to issue execution upon foot of a judgment, which he
had entered upon said bond, against both the said William Woods
and his sureties, unless the entire amount thereof was paid to him
on or before the 18th of May 1859, when the stay of execution
therein would expire.
On the 19th of May 1859, William Woods filed his original
cause petition in this matter, against Patrick Martin, steting the
foregoing facts, and praying for an injunction to restrain the said
Patrick Martin from issuing execution upon said bond and warrant,
undertaking, if so directed, to bring in and lodge to the credit of this
matter the entire amount secured by said bond ; and asking a decla-
ration that he was entitled to have the amount of said rent and costs,
and all other incumbrances affecting said lands, at the the date of
1860.
Ch, Appeal.
Statement,
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150
CHANCERY REPORTS.
18fi0.
Ch, Appeal
Statement.
said indenture of 18th November 1856, paid off and discharged out
of the amount secured by* said bond. Upon the 27th of May 1859>
an injunction, until further order, was granted, pursuant to the
prayer of said petition. In pursuance of the terms of said injunction
order, the said William Woods invested a sum of £250 in Grovern-
ment stock, and transferred the same to the credit of this cause.
Patrick Martin filed his answering affidavit, alleging that the said
William Woods agreed to become the purchaser of said farm, at the
sum of £350, and also to clear, at the landlord's office, whatever
arrears of head-rent might be then due ; and denying that it was
ever agreed that credit should be allowed out of the amount of the
bond given for the balance of the purchase-money, for any incum-
brance which should appear against said lands, or any arrear of rent.
This affidavit further stated, that judgment had been entered on
said bond, and registered as a statutable mortgage against the lands
of the conusors ; but that the said Patrick Martin had, by inden-
ture of 20th April 1859, assigned said statutable mortgage, and all
interest therein, to the said John Martin, in satisfaction of a debt of
£200, and the arrears of interest thereon. In consequence of the
allegations contained in said answering affidavit, the petition was,
on the 2nd of August 1859, amended^ by making said John Martin
and others respondents.
On the hearing before the Master of the Rolls, on the 11th of
January I860, Patrick Martin's Counsel having insisted that the
covenants of the deed of 18th of November 1858 had not been
broken, and that the petitioners' remedy, if any, was at Law, his
Honor directed the further hearing to stand over, to enable the
petitioners to bring an action against the said Patrick Martin on the
said deed ; and an action of covenant having been brought accord-
ingly, Patrick Martin allowed judgment to go by default; but
upon the assessment of damages, the said Patrick Martin and John
Martin were examined to prove that there was only £40 of rent
due to Mr. Mathews ; and the Sub-sheriff having let this evidence
go to the jury, they found a verdict of £40 for petitioner.
The said cause petition having come on for further hearing on
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CHANCERY REPORTS.
151
said judgment at law, and tbe Sheriff's report of inquiry, on the
11th day of June I860, the Master of the Rolls made a decretal
order, declaring the said William Woods entitled to have the sum of
£92. 15s. 8d., being the amount of rent and costs ascertained by the
said civil-bill decree to be due, by the said Patrick Martin, to the
head-landlord, out of the lands, up to the 1st of November 1858,
paid off and discharged out of the amount secured by the said bond
for £250; and further declaring the assignment of the judgment
entered on the bond, and of the statutable mortgage entered thereon,
fraudulent and void as against the petitioner and his sureties ; and
ordering that the injunction, which issued pursuant to the order of
tbe 27th of May 1859> should be made perpetual, and that the said
John and Patrick Martin should re-convey the lands against which
they had so registered said judgment as a statutable mortgage, to
the said William Woods and his said sureties, according to their
respective estates and interests therein ; and declaring the said Wil-
liam Woods entitled to his costs of the suit, and procuring such
satisfactions and re-conveyances against the said Patrick Martin and
John Martin, when taxed, together with the som of £21. 9s. 9d.,
the taxed costs of the action at Law ; and further declaring that the
respondents Thomas Woods and Isaac Lindsay were entitled to be
paid their costs by the said William Woods, and that he should
have them over, with his own costs, against the other respondent ;
and directing that, after pajrment of those sums out of the stock
standing to the credit of this matter, the balance, if any, should be
transferred to the said Patrick Martin.
The respondents Patrick and John Martin having appealed
against the entire of this decree —
1860.
Ch,',AppeaL
WOODS
MABTIN.
StatemenL
Messrs. Brewster^ Lawty and Faloon, on behalf of William
Woods and his sureties, in support of it, cited Dart, on Vendors,
p. 538, and TourtnUe v. Naish (a), to show that when the convey-
ance is executed, and the purchase-money is secured, the purchaser
may come into Equity to have it employed in discharge of newly
discovered incumbrances.
(a) 3 P. Wms. 306.
Argument,
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152
CHANCERY REPORTS.
V.
MABTIN.
Argument,
I860. The AUomey-General, with whom were Messrs. Warren and
Ch. Appeal j^ Fitzgibhon, for the Martins, reUed on Sug. on Ven., p. 684,
WOODS ^Yi\i ed^ in which this proposition is laid down — " It seems that if
the conveyance be actaallj executed, the purchaser can obtain no
relief, although the money be only secured." It is true that, in
TowrvilU V. Naish^ Lord Hardwicke says, '* Though the purchaser
has no remedy at Law against the pajrment of the residue for which
he gave his bond, yet now he has notice of an incumbrance, under
which circumstances the Court would stop payment of the money
and on the bond.^ . But that is an extrajudicial opinion of Lord
Hardwicke, and not the point decided in that case, which was
merely that notice before actual payment of the purchase-money is
equivalent to notice before the contract; for which Sir E. Sugden
does cite it as an authority, at page 1036 of his Vend, and Pmr.y
11th edition.
The Lo&D Chan CEixoB.
Judgment. Whether it be a mere dictum or decision of Lord Hardwicke in
Tourville v. Naishj we think it both good law and good sense ; and,
as it is directly in point in the present casCi we will act vpon it and
affirm the decree.
Order,
Mr. Warren then submitted that the costs of the, appeal ought
not to be given against the appellant, as the decretal order had not
given credit to the appellant for the interest which accrued on the
bond between its' date and the issuing of the injunction, and because
the appellant ought not to have been ordered to pay the costs of
re-assigning the statutable mortgage, and satisfying the judgment
entered upon the bond.
The petitioner's Counsel admitting the amount of interest due,
the following order was made: —
Affirm the order bearing date the 11th of June I860, except
in so far as same declares the said William Woods entitled
to his costs of procuring satisfaction of the aaid judgment
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CHANCERY REPORTS. 153
and re-convejance of the statutable mortgage in said order I860,
mentioned, against the said P. Martin and John Martin ; ' pp^o*,
and let the costs thereof be borne and paid by the said
William Woods ; that the said Patrick Martin is entitled to
credit for a sum of £6. 5s., being a half year's interest upon Order,
the bond for £350, &c. ; and declare the said William
Woods bound to give credit for such sum out of the amount
decreed to him. No costs of appeal.
Chancery Appeal Hearing Book, 1,/. 385.
TOL. 11. 20
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154
CHANCERY REPORTS.
1660.
RolU.
Mmf 1.
Nov. 20.
KINSELLA V. CAFFREY.
(In the RoU$.)
Where there TiMOTHT EnrsELLA, bj bis will, bearing date tbe 24tb of Septem-
is an indefinite
bequest to the ber 1839, bequeathed to each pf his grand-nephews, Laurence
hediewithoat Caffrej and Thomas Caffrey, respectivelj, one annuity of £50,
i^T'c^dr^r ^^^S^ ^^ ^^ diyidends of his Goyemment stock, payable during
rottdoiwttfiJke *^®*'^*v«fl half-yearly, at the times of the payment of the dividends
by impUcation. ^^f ^^ gj^^k^ ^j^i^ ^ ^ji^use against alienation ; and he directed that,
Where there
is a bequest to on the death of either of them, leaving issue lawfully begotten, his
life, and, if he annuity should go to such issue equally ; the share of such child or
haying or leav- <^^il<^®n as should happen to die before the age of twenty-one years,
owiSeSd- ^^ ^y ^^ ^*y® ^^ marriage, to go to and be equally divided amongst
SSed^b^*'^'*' *^® survivor or survivors of such issue, during their respective
plication. lives ; and if but one child, the whole of said annuity of £50 a-year
Where there
is a bequest to to go to such only child for life ; and in the case of the death of
life, and, if he either of them, Laurence and Thomas Cafifrey, without lawful issue
haying or leay. l^^ng at his death, he ordered that his annuity should go to the
^r and there s^'^^^®' ^^^ 1^^®» ^^^ ^ <5*s® ®^ *^® death of both his grand-
Se wSnto "^ nephews, " without leaving issue, or, leaving such, and that such
raise an infer- igg^^ should die before the age of twenty-one years,** in either
ence in favour ^ ^ ^ i
of the children,
the Court is at liberty to take them in connection with the bequest in the event of
tbe parent dying without haying or leaying issue, and to hold that the children are
entitled by implication.
A testator bequeathed to each of his grand-nephews, A and B, an annuity for
their respective Uyes, and, in case of the death of either of them, leaying issue, he
directed that the annuity of him so dying should go to such issue, if more than one,
shwre* and share alike ; the share or shares of such child or children as should die .
under twenty-one or marriage to go to and be equally divided amongst the sur-
yiyor and suryiyors of such issue, during their respectiye natural liyes; and if but
one, the whole of the annuity to go to such only child for life ; and in case of the
death of either A or B, without layrfdl issue liying at his death, that the annuity of
him so dying should go to the survlyor for his life ; and in case of the death of both
A and B, without leaying issue, or, leaying such, and that such issue should die
before tiie age of twenty-one years, then, after the death of the suryiyor of such issue
of A and B, he directed that the said two annuities should sink into his residual]^
personal estate. A died without issue. — Held, that there was a bequest, by imph-
cation, of A's annuity to the children of B.
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^ase, and immediately after the death of the survivor of such issue,
the said two annuities of £50 a-jear should sink into and form part
of his capital stock and funds, for the residuary purposes of his will ;
and he bequeathed the residuary fund, subject to an annuity, to his
nephew John Kinsella.
The exact terms of the bequest are stated by his Honor, in his
judgment, infra, pp. 156, et seq.
Timothy Kinsella died shortly after his will ; and a bill having
been filed to carry the trusts of the will into execution, by a decree
in the cause, bearing date the 18th of May 1847, two sums of stock
were set apart, and directed to be carried to a separate credit, to
answer the annuities.
Thomas Caffrey left Ireland in April 1847 ; and not having been
heard of afterwards, an order was made, on the 13th of July 1858,
referring it to the Master to inquire and report whether the said
Thomas Cafifrey was living or dead ; and if the said Thomas was
married, and, if married, whether he had any child or children. The
Master, by his report, dated the 17th of February 1860, found that
he was dead, and had died on the 22nd of April 1847, and that he
was not married at the time of or previous to his death.
Laurence Caffrey died on the 19th of October 1857, leaving five
children, Thomas, Marian, Rosanna, Laurence and John Joseph, all
under age.
A motion was now made by John Kinsella, the residuary legatee,
that the stock set apart to answer Thomas Caflfre/s annuity might
be transferred to him.
1860.
RolU.
Statement.,
Mr. S. Ferguson and Mr. Lindtay^ in support of the motion,
contended that, on the death of Thomas Caffrey, his anhuity sank
into the residue. There was no bequest by implication to the
children of the survivor. In order to create a gift by implication,
a clear intention to that effect must be collected from the will. The
intention to be collected in this will was rather against such an im-
plication, for both annuities were to go over, in the event of Thomas
and Laurence dying without issue ; and there was no reason why
one should not go over, on failure of issue of the party entitled
ArgwMnt.
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CHANCERY REPORTS.
1860.
Rolls.
*■ _'
KIN8BLLA
CAFFBRT.
Argument.
Nov, 20.
Judgment.
to it : Ranelagh y. Ranelagh (a) ; Addison y. Busk (b) ; Toums
y. Ti^entworih(e) ; Sharks y. Restall{d).
Mr. Brewster and Mr. Brereion^ contra, contended that there
was a clear gift by implication. The residuary legatee was to take
only '^ in case of the death of both my grand-nephews- without leay-
ing issue, or, leaying such, and that such issue,*' t. «., the issue of
both, " should die under the age of twenty-one years." So long as
there was issue of either, the residuarylegatee was to take nothing :
1 Jar.j p. 462; Scott y. Bargeman {e); Graves y. Holland (f)\
Doyne y. Cartwright (g) ; Doe d. Clifi v. Birkhead (A).
The Master of teub Rolls.
The question which arises in this case is, on the construction
of the will gf Timothy Kinsella, dated the 7th of Noyember 1839-
By that will the testator directed, " That by and out of the annual
interest, diyidends and proceeds of my Groyemment stock,
my executors hereinafter named, and the surviyor of them, do and
shall, yearly and eyery year, pay unto each of my grand-nephews,
Laurence Caffrey and Thomas Caffrey, respectiyely, one annuity or
clear yearly sum of £50 sterling ; the same to be charged upon and
paid and payable unto them the said Laurence Caffrey and Thomas
Caffrey, out of the annual interest and diyidends of all my said
Goyemment stock and funds which shall be in the Bank of Ire-
land at the time of my decease, or out of a sufficient portion of such
stock and funds, which I order and direct my executors to set apart
and inyest, for the purpose of securing unto my said two grand*
^ nephews, Laurence Caffrey and Thomas Caffrey, the said annuities
of £50 each, so by me bequeathed to them respectiyely
The said annuities or annual sums of £50 each to be paid and pay-
able to the said Laurence Caffrey and Thomas Caffrey, for and
during their respectiye natural liyes, by tv^o equal half-yearly pay-
(a) l2BeaY.20O.
(c) U Moo., P. C. C, 543.
C«) 2 P. WmB. 6a
{jj) I CoU. 482.
(6) 14 Beav. 459.
((/) 24 Bear. 21.
('/J 11 It. Eq. Rep. 284.
(Ji) 4£xch.Rep. 110.
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mente, at the reapective times of the payment of the interest and
diYidends upon mj said Grovernment stock and funds, or upon
the portion thereof to be set apart for that purpose And
my will and desire is, that the said Laurence Caffrej and Thomas
Cafirey, or either of them, shall not sell or dispose of his, her or
their said annuity to any person or persons whatsoever ; and in case
they, or either of them, shall sell or dispose of the same, then and
in such case, I order and direct, and my will is, that the annuity of
him so selling or disposing of the same shall go to the other of the
said annuitants who shall not sell or dispose of the same ; and in
case of the death of either of them, the said Laurence Caffrey and
Thomas Cafirey, leaving issue lawfully begotten, then I order and
direct that the said annuity of £50 a-year of him or them so dying
shall go to such issue, if more than one, share and share alike ; the
share or shares of such child or children as shall happen to die before
the age of twenty-one years, or day or days of marriage, to go to
and be equally divided amongst the survivor and survivors of such
issue during their respective natural lives ; and if but one child,
then the whole of said annuity of £50 a-year to go to such only
child,, for and during the term of his or her natural life ; and in
case of the death of either of them, the said Laurence Cafirey and
Thomas Cafirey, without lawful issue living at his death, then I
order and direct that the annuity of him so dying shall go to the
survivor of them, the said Laurence Caffirey and Thomas Caffrey,
for and during the term of his natural life."
Before adverting to the clause which next follows, under which it
is said that there was a bequest by implication, of Thomas Caffirey's
annuity to Laurence Caffrey's children, it may be convenient to
state the facts to which I shall now advert, and to consider shortly
the effect of the bequests I have already read.
It is found by a report of Master Brooke, dated the 17th of
February I860, that Thomas Cafirey died upon the 22nd of April
1847, and that he never was married. Laurence Caffrey survived
Thomas Caffrey, and died in the month of October 1857, leaving
Catherine Caffrey his widow (lyho has taken out administration to
the said Laurence Caffrey), and several minor children. Laurence
1860.
EoU».
Judgment.
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CHANCERY REPORTS.
1860.
Judgwunt*
Cafftej received both annoities of £50 a-year, during his lifetime.
Now the short sabstance of the beqaest of Thomas Caffrej's annaitj
of £50 a-year (which, on the one hand, is claimed by.the children
of Laurence, and, on the other hand, by John Kinsella, the resi-
duary legatee, under the clauses m the will to which I shall just
now advert) is as follows : — That annuity of £50 a-year was be-
queathed to Thomas Caiirey for his life. The non-alienation clause
need not be referred to, as there was no alienation of the annuity.
If Thomas Caffrey had left issue living at his death, which, under
the term% of the bequest, I think meant children (a), the annuity of
£50, bequeathed to the said Thomas Caffrey for life, was to go
amongst his children ; and if any died under twenty-one, the sur-
vivors were to become entitled, during their respective natural lives,
and if but one child, the whole of the annuity was to go to such
child, for the term of his natural life. The effect of this part of the
will is, that Thomas' children (if he had been married and left
children) would have only been entitled for their respective lives.
By the provision of the will which next follows, Thomas Caffrey's
annuity (in the event which happened, of the said Thomas dying
without issue living at his death) was bequeathed to the; said
Laurence Caffrey for his life. Now it will be observed that
there was no express bequest of Thomas Caffrey's annuity to the
issue or children of Laurence ; and, therefore, the validity of their
claim depends on this, whether the clause which I shall now read
gave Thomas Caffrey's annuity, by implication, to the children of
Laurence, Laurence being dead ? That clause is as follows : — *' And
in case of the death of both my grand-nephews, without leaving
issue, or, leaving such, and that such issue should die before the age
of twenty-one years, in either of which cases, and from and imme-
diately afler the decease of the survivor of such issue of the said
Laurence Cafirey and Thomas Caffrey, I order and direct, that said
two annuities of £50 a-year shall sink into and fbrm part of my
capital stock and funds for the residuary purposes in this my will
mentioned."
With respect to those residuary purposes, an annuity of £25 was
Ca) See Rhodes ▼. Rhodes (27 Bear. 413).
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bequeathed to Mary Marphy, charged on the testator's Govemment
stock ; and after some other bequests of sums of Government
stock, there is the following residuary clause: — "And as to, for
and concerning all the rest, residue and remainder of my said
capital stock and funds which shall be in the Bank of Ireland at
the time of my decease, I give and bequeath the same, and the stock
and funds upon or in which the same shall be invested, unto my
said nephew John Elinsella (subject to the payment of the annuities
and legacies, and the interest and dividends thereon, as hereinbefore
mentioned)," for his life, and, after his death, to the children of
John Kinsella living at his death, as in the will mentioned ; *' and
as to the rest, residue and remainder of all my property and effects,
of whatever nature or kind soever, not hereinbefore dbposed of, I
give, deviae and bequeath the same unto my said nephew John Kin-
sella, to be disposed of by him. as he shall think fit." John Kinsella
and another person were named executors, and proved the will.
With respect to the question whether the children of Laurence
Caffrey became entitled by implication to Thomas Cafirey's annuity
of £50, there is some difficulty, having regard to the authorities.
In Ra$ulagh v. Banelagh (a), pecuniary legacies were severally
given to A, B, C and D, during their . natural lives, and, in case
of the denth of any of them without legitimate issue, his proportion
was to be divided amongst the survivors. A died, leaving children.
It was held that they did not take by implication, but that on A's
death his legacy fell into the residue. Lord Langdale, in giving
jndgiDent in that cftse, stated, amongst other matters : — " In this case
the le^tec;, by the express words of the codicil, takes no interest
beyond bis life ; and if there be no further gift of the legacy, the
residuary legatee, who takes subject to all that is not otherwise
well given, must be held entitled. The issue of the legatee is
named in the codicil only in the description of contingency on which
the legacy is given over ; and I am unable to find anything which
assists in collecting an intention to give to the children. I can
collect no particular intention to give this legacy to the residuary
legatee (the words residuary legatee were, I presume, used in mistake
(a) 12 Beay. 200.
1860.
RoUs.
Judgment,
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CHANCERY REPORTS.
I860.
RolU.
Judgment.
for children) ; and I cannot answer the question proposed bj Sir
Thomas Plumer, in Ex parte RogerSy why the children were named
on the occasion of the gift over. Bat in that case there seems
to have been found some farther reason, which does not here exist,
for inferring an implied gift ; and on the whole, mj opinion is, that
the legacy falls into the residue. I think it extremely probable
that the testator did mean a benefit to the children, but si voluU
non dixit, I think there is not sufficient to raise the implication,
and that the legacy falls into the residue." Sparks ▼. RestaU (a)
decides the same point. In the case of Addison t. Bush (6), there
was a bequest of residue to John Lee ; but if he should die in the life-
time of the testatrix, without leaving children, then to Charles Lee.
John Lee died in the lifetime of the testatrix, leaving issue. It
was held that the children of John Lee took nothing by implication.
That case differs from the present, in this respect, that the devise
to John Lee was not limited to him for life ; and in that class of
cases the children clearly do not take by implication.
In Jarman on WtUs^ 2nd ed., vol. 1, p. 473, it is laid down as fol-
lows : — *' In several cases it has been considered that a bequest to a
person, and if he shall die without having children, or without leaving
children, which means without having had a child bom, or without
leaving a child living at his decease, does not raise an implied gift
to the children, but the parent takes an absolute interest, defeasible
on his dying without having had or without leaving a child, as the
case may be. The rejection of the implication in such a case is not
(as already pointed out) productive of any absurdity ; for it supposes
the testator, by making the interest of the legatee indefeasible on
his having or leaving a child, to intend that if there are children he
shall have the means of providing for them.'' Mr. Jarman refers to
most of the authorities on the subject. The case of Addison v.
Busk was affirmed on appeal, under the name of Lee v. Busk (c) ;
and the principle on which it was affirmed was that adverted to by
Mr. Jarman in the passage I have read. There was no estate for
life given to John Lee. The devise was indefinite ; and on the prin-
(a) 24 Beav. 218. (b) 14 Bear. 469.
(c) 2D., M.DeG.8ia
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CHANCERY REPORTS. 161
ciples adverted to bj Mr. Jarman, there was no ground for 1860.
holding that the children took an estate by implication, and accord- ^^..^i^^^^
iiiglj* ift ^&s lield ^l^at there was an intestacy. The case of ^^
JRanelagk y. Ranelagh (a), no doubt, appears to decide that, if caffret.
there be a bequest to A for life, and if he die without leaving judgmeid.
children, to B, and A dies leaving children, the children will
not take by implication, and that the bequest will fall into the
residue. But that is a different case, and involves a different
question from that decided in Addison v. Busk (b), Mr. Jarman,
in his work on Willsy 2nd ed., vol. 1, p. 478, states: — "But it
seems that where the language of the will necessarily confines
the interest of the parent to his life, the Court will lay hold of
slight circumstances to raise a gift in the children, and thereby
avoid imputing to the testator so extraordinary an intention as
that the devisee or legatee over is to become entitled if the first
taker have no child, but that the property is not to go to the
child, if there be one, or its parent." Mr. Jarman then refers
to Ex parte Rogers (c). In that case, a testator having by his
will bequeathed £1000 to his niece A, by a codicil, reciting that
she had married indiscreetly, and that he intended to withdraw
the legacy out of her power to dispose of it, and out of the
power of her husband so to do, did therefore direct his executors
to secure his niece the interest of the said £1000, independently
of her husband, by placing out that sum in trust for his niece;
she to enjoy the interest or dividends during her life, and, at
her decease without child or children, the principal and interest
to be divided amongst such of her sisters as should be then living."
Sir T. Plumer was of opinion that, by the combined effect of the
will and codicil, he was justified in saying that the children took
the legacy by necessary implication. Why, he asked, did the
testator mention children if he did not intend them to take ? Mr.
Jarman then proceeds to state that in Ex parte Rogers ^Uhe
implication was evidently aided by the testator's prefatory ezpres-
(a) 12BeaT.20O.
(fr) 14 Beay. 459; 2 De G.» M. & G. 810.
(c) 2 Madd. 449.
TOL. 11. 21
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CHANCERY REPORTS.
1860.
RolU.
Jud(fmetU.
sions in the codicil, which showed that he did not intend to
deprive his niece of the legacy bequeathed by the will, bat merely
to qn»Ufy it in a manner suited to her altered condition.'* Mr.
Jarman then adverts to the observations of Lord Langdale on
that case, in Randagh v. RaneUighf and to Lord Cranworth's
observations mLee v. Busk, Now the case before Lord Langdale
appears to me not to be at all inconsistent with Ex parte Rogers.
Ranelagh v. Ranelagh only decides that, if there be a bequest to A
for life, and, if he die without leaving children, to B, the children,
in the absence of anything on the face of the will from which an
intention can be inferred that they should take, will not be entitled
by« implication arising solely from the contingency on which the
devise over is to take effect. But Sir T. Pluroer appears to have
held, which is consistent with Ranelagh v. Ranelagh, that the
Court may, from slight circumstances in connection with the devise
over, imply that the testator intended the children to take. With
all respect for Lord Cranworth's observations on Ex parte Rogers^
in Lee v. Busk^ his Lordship appears to have overlooked the dis-
tinction that, in the ktter case, the bequest to the parent was an
indefinite bequest, and not a bequest for life. The two cases are
of an entirely different class, and are distinguishable on the very
clear grounds stated by Mr. Jarman,
I apprehend, therefore, that the authorities may be classed under
three heads : — First ; where there is an indefinite bequest to the
parent, and, if he die without having or leaving children, to B. In
that case, it is clear that the children do not take any interest by
implication. Secondly ; if there is a bequest to the parent for life,
and, if he die without having or leaving children, to B ; if the
parent dies leaving children, they are not entitled by implication.
Thirdly ; if, however, in a case such as I have last mentioned, there
are matters on the face of the will to raise an inference in favour of
the children, the Court is at liberty to consider these circumstances
in connection with the bequest' over, in the event of the parent
dying without having or leaving children, although such bequest
over, by itself, is not sufficient to justify the Court inferring a gift
in favour of the children.
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CHANCERY REPORTS. 163
If this be the result of the authorities, all of which may be I860,
reconciled by reducing them to the three classes I have stated, the v ^— ^
, , - . , KINSBLLA
question is, whether there are circumstances in the present case, ^^
taken in connection with the gift over, to justify the Court ia gaffrbt.
holding that the testator intended that the children of Laurence judgment.
Cafirej should take the £50 a-year bequeathed to Thomas Caffrey
for life, he having died unmarried, and consequently without child-
ren ? The one annuity of £50 was bequeathed to Thomas Caffrey
for life, with the bequest over, which I iiave stated, to his children.
The other annuity of £50 was bequeathed to Laurence Caffrey for
life, with the bequest over, which I have stated, to his children. In
the event of either dying without liawful issue (which, I think,
means children) living at his death, the annuity of £50 of the party
so dying was to go to the survivor of them, the said Thomas Caffrey
and Laurence Caffrey, for life. The annuity of Thomas Caffrey
was, therefore, in the event, which happened, of his dying without
children living at his death, to go over for a certain period, at all
events, viz., during the life of Laurence Caffrey. Then follows the
provision on which the question mainly turns ; that, in case of the
death of Thomas Caffrey and Laurence Caffrey " without leaving
issue, or, leaving such, and that such issue should die before the age
of twenty-one years^ in either of which cases, and from and imme-
diately after the decease of the survivor of such issue of the said
Laurence Caffrey and Thomas, I order and direct that said two
annuities of £50 a-year shall sink into and form part of my capital
stock and funds for the residuary purposes in this my will men-
tioned.** Now John Kinsella daims, as residuary legatee, that
which, by the passage of the will which I have read, was not to go
over and form a fund for the said residuary purposes, in the events
which have happened, of Laurence Caffrey having left children. So
also the limitation over, in the event of Thomas and Laurence Caf-
frey dying without leaving issue, or, leaving such, that the issue
should die under twenty-one, is to take effect only in the event
of both Thomas and Laurence dying without leaving issue, or,
leaving such, that the issue should die under twenty-one. So also,
the limitation over not being confined to Thomas and Laurence
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CHANCERY REPORTS.
1860.
RoU$.
KIN8ELLA
r.
CAFFRET.
JudgmenU
dying without leaving issue, or, leaving such, and that such issue
should die before the age of twenty-one^ would appear to negative
the idea stated bj Lord Eldon, in Doe v. Wilton (referred to hj
Mr. Jarman)^ that *' nothing is given to them (the children) bj this
will. Thej are merely named in the description of the contingency
on which the estate was to go over." Why was the event of their
attaining twenty-one introduced in this case, if they were intended
to take nothing prior to theif attaining twenty-one ? It appears to
me that the testator intended that, on the death of Thomas Ca£&ey
without leaving children, Thomas' annuity was to be held by Lau-
rence, in the same manner as his own, and that Laurence's children
were to take the same interest in Thomas' annuity, on their £Bither*8
death, that they admittedly take in their father's annuity.
I am of opinion, therefore, on the whole, that this case falls within
the third class of cases which I have mentioned, and that the motiou
of John EinseUa should be refused. It is a case of difficulty ; and I
shall not give any costs.*
* See Egan t. MorrU (L. & G., Ump. Plan.» 297).
Abo. 6.
In the Matter of BURGESS' TRUSTS,
and 11 & 12 Ftc, c. 78.
Thk petition was presented by Elizabeth Jane Allen, formerly the
widow of William Burgess, claiming as such, under the Statute of
A ^aarriage
setUemeDt
contained a
clauBe that -i^v. •
the provision DistnbuUons, her share of a sum of £1544. Is. Id., lodged to the
and^intended^ credit of this matter, part of the assets of the said William Burgess,
her yidoity,
should be
accepted,
deemed and
By the settlement executed on the marriage of the petitioner,
then Elizabeth Jane Toung, with the said William Burgess, and
taken in foil bearing date the 20th of August 1841, certain houses, the property
lien of dower
or thirds, to
which she might be entitled at Common Law, or otherwise howsoerer. — HeU, that
she was barred of her share of her husband's personal estate, under the Statute of
Pistributions*
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1860.
RoUs.
In re
BUBGESS'
TRUSTS.
of the petitioner, were assigned to trustees, in trust for William
Burgess, for life, and, after the death of the petitioner, to the use of
the said William Burgess, his heirs, executors and assigns ; and a
sum of £500) the property of the said William Burgess, was assigned
to the same trustees, in trust to permit him to receive the interest Siatmenu
during his life, and, after his decease, in the lifetime of the petitioner,
to permit her to receive the interest for her life, and, after her death,
in trust for the issue of the marriage, as William Burgess should
appoint, and, in default of appointment, equally ; and in case of no
issue, in trust for Richard Burgess, after the death of the petitioner
and William Burgess ; and it was agreed and declared to be the
true intent and meaning thereof, 'Hhat the provision hereby named
and intended for the said Elizabeth Jane Young, in the event of her
viduity, shall be accepted, deemed and taken in full lieu of dower or
thirds, to which she might be entitled at Common Law or otherwise
howsoever.'*
William Burgess died intestate, on the 3rd of May 1846, leaving . .
the petitioner his widow, and three children, the survivor of whom « "
was Mary Elizabeth Burgess. The petitioner claimed one-third of
the fund in Court, as his widow, and also a moiety of the shares of
her deceased children.
The provisions of the settlement, and the rights of the several
parties, are more minutely stated in his Honor's judjgment.
Mr. Warren^ for the petitioner.
The rule, as now established by the authorities, is, that the
widow's right to her share, under the Statute' of Distributions, can
only be barred by express words in her settlement. ''Thirds" has
been held not to mean a share under the statute, because the widow's
share varies ; and the words " or otherwise " do not carry tht» re-
striction further, for they must be read in connection with the word
** thirds : " Berry v. Berrj/ (a) ; Druce v. Denison (*) ; 64rJ^ v.
Gwrly {e) ; Colleton v. Garth {d) ; Co. Lit., p. 32.
(a) 6 Ir. Chan. Rep. 497. (6) 6 Ves. 885.
(c) 2 Dr. & Wal. 463 ; S. C, 6 CI. & Fm. 759.
{d) 6 Sim. 19.
Argument.
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CHANCERY REPORTS.
1860.
RoUs.
Argument.
Mr. Lemnge, for Marj Elizabeth Burgess.
The word ** provision,'' used in this settlement, is an index to the
intention of the parties, which was, that the petitioner should have
no other benefit from the property of the husband, real or personal,
except that provided for her by the settlement. That; intention is
fully carried out by the words '* or otherwise," which are not to be
found in any of the authorities relied on, and would be insensible
unless they are applicable to a share under the Statute of Distribu-
tipns: Walker V.Walker (a).
Nov. 6.
Judgment,
Mr- Warren, in reply.
In Walker v. Walker^ Lord Hardwicke merely decided that the
widow was barred of her free bench. The word " otherwise " may
have effect by being applied to the widow's right to lands, under
any customary right or statute.
The Mastek of the Roixs.
This is a petition under the Trustee Relief Act, presented by James
Bedford Allen and Elizabeth Jane Allen his wife. The faots appear
to be as follow : — ^By indenture of settlement, made in contempla-
tion of the marriage of Richard Burgess with Fhillis Duckett, dated
the 26th of October 1829, and made between the said Richard
Burgess, of the one part, the said Fhillis Duckett, of the second
part, and Richard Mayberry Duckett and Thomas Murray, since
deceased, trustees, of the third part, two policies of insuranoe on the
life of Richard Burgess, for £600 each, and also a sum of £1000,
were assigned by him to the trustees, upon trust, after the decease
of the said Richard Burgess, to pay the interest of the said two sums
of £500, and of said sum of £1000, to the said Fhillis Duckett, for
her life, and, after her decease, in case there should not be issue of
the marriage at the time of her death, on trust to assign the- said
sums to the executors, administrators and assigns of the said Richard
Burgess. There were no issue of the marriage.
Richard Burgess died on the 18th of October 1844, having pre-
viously made his will, dated the 1 6th of November 1842, and thereby
(a) 1 Vm. 54.
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CHANCERY REPORTS- 167
bequeathed to TVllliam Burgess, his son by a former marriage, the 1860.
Roils,
amount of the two pdicies, subject to testator's wife's life interest
therein ; and also £500, further portion of the property in his said
marriage settlement, subject to his wife's life interest therein.
Fhillis Burgess proved the will on the 1st of March 1845. Wil- Judgment.
liam Burgess surviTcd his father, and died intestate on the 3rd of
May 1846, in the lifetime of Fhillis Burgess, leaving Elizabeth Jane
Burgess, otherwise Young, his wife, and two sons, Richard Howard
Burgess and William Young Burgess, and one daughter, Mary
Elixabeth Burgess, him surviving ; and the petitioner submits that
thereupon the petitioner Elizabeth Jane Burgess, now Elizabeth
Jane Allen, became entitled to one-third of the sums bequeathed by
Richard Burgess to William Burgess, subject to the life interest
therein of the said Fhillis Burgess, and that the children of William
Burgess became entitled to the remaining two-thirds. Administra-
tion of the goods of William Burgess was, on the 23rd of May 1846,
granted to the said Elkabeth Jane Burgess, his widow'. Elizabeth
Jane Burgess was married again, and is now the wife of James
Bedford Allen, and they have filed the present petition. Richard
Howard Burgess and William YotfUg Burgess, the sons of the said
William Burgess, have died under age, without having been mar-
ried. Their sister Mary Elizabeth Burgess is now about fourteen
years of age. The petition states that the shares of the two
deceased ehildreii passed, under the Statute of Distributions, in
equal shares, to their mother, the petitioner Elizabeth Jane, and to
their sister, the said Mary Elizabeth. Richard May berry Duckett, the
surviving trustee in the settlement of the 26th of October 1829, has
transftsrred to the credit of this matter, under the Trustee Relief
Act, £1544. Is. lid., which is invested in £3 per cent, consols, and
which represents the sums bequeathed to William Burgess by the
said Riehard Burgess.
The question which arises in the case is, whether the petitioner
Elizabeth Jane Allen was barred by the terms of the settlement,
executed on her marriage with her first husband, William Burgess,
from claiming one-third of the sums bequeathed to said William
Burgess by Richard Burgess, the said William Burgess having died
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CHANCERY REPORTS.
1860.
RolU.
In re
burgess'
TRUSTS.
Judgment.
intestate? That settlement bears date the 20th of August 1841, and
was made between Epaphroditus Young and the petitioner, then
Elizabeth Jane Young, his daughter, of the first part, the said
Richard Burgess and William Burgess, of the second part, and
Thomas Carpenter and Richard Mayberrj Duckett, of the third
part. The settlement, after other recitals, recites that it was agreed
that Elizabeth Jane Young should convey her interest in certain
premises therein mentioned to the trustees, and that Richard Burgess
should assign a sum of £600, part of a sum charged on certain
estates in said settlement mentioned, to the trustees, on the trusts
thereinafter mentioned ; and, after such recitals, the indenture
witnessed that the said Elizabeth Jane Young assigned her interest
in the said premises (describing them) to the trustees, on trust,
from and immediately after the death of the said Epaphroditus
Young, to the use of William Burgess and his assigns, for life ;
and, after the death of the said Elizabeth Jane Young, to the
use of William Burgess, his heirs, executors, administrators and
assigns. I think there is some error in the copy of the settlement
sent to me, as to the part I have just read; but it does not appear
to be material, having regard to the question in the case. The
indenture further witnessed that Richard Burgess assigned said sum
of £600 to the trustees, on trust to permit William Burgess to
receive the interest for his life, and, after his decease in the lifetime
of the said Elizabeth Jane, to permit the said Elizabeth Jane to
receive the interest for her life ; and, after her death, in the event
of there being issue of the marriage, the £600 was to be paid to
and amongst such issue, in such shares as the said William Burgess
should appoint ; and, in default of appointment, amongst the issue,
and, in case there should be no issue of the marriage, on trust
to pay over the £600 to Richard Burgess, after the death of the
said William Burgess and of the said Elizabeth Jane. The deed
then contains a covenant by William Burgess to use his best exer-
tions to become a member of an annuity company for the purpose
of promoting annuities for widows, and thus to make a further
provision for the said Elizabeth Jane ; and then follows this pro-
vision, on which the question arises : — " And it is further agreed,
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by and between all tbe parties to these presents, and declared to
be the true intent and meaning hereof, that the provision hereby
made, and intended to be made, for the said Elizabeth Jane Young,
in the event of her viduity, shall be accepted, deemed and taken
in full lieu and bar of dower or thirds, to which she might be entitled
at Common Law, or otherwise howsoever."
The petition alleges that there was a deed of settlement executed
on the marriage of the petitioner, but that it does not deal with or
affect the stock to the credit of this matter.
With respect to the constrnctibn to be put on the clause in the
settlement which I have last read, it is necessary to refer to the
authorities which have been cited. In the case of Colleton v.
Garth (a), a rentcharge, expressed to be for jointure, " and in lieu
of dower and thirds, at Common Law," was held to be in lieu only
of. any claim which the wife might have upon her husband's lands,
and not to bar her claim under the Statute of Distributions. There
was no reference in that case to personal estate. In the case of
Slaiter v. Slatter (6), which was the case of a deed of separation,
the provision made for the wife was to be in bar '*of all dower
or thirds, either at Common Law or by custom, which she at any
time thereafter might claim, challenge or demand, from, out of, upon
or against the said John Slatter (her husband), or his present or
future estate, real or personal." The authorities bearing on the
question were not referred to ; and Lord Lyndhurst, as the report
states, " without entering into any detail of the circumstances of the
case, expressed his opinion that there w^s nothing in the deed to
deprive the wife of any interest to which she was entitled in the
personal estate of her late husband." I do not think that these cases
are applicable to the case before the Court. In Druce v. Dent-
$on{c\ the wife agreed to accept the provisions in the settlement,
^' in lieu, bar and satisfaction of all dower or thirds, which she might
otherwise be entitled to oat of all the real and personal estate of her
husband." Lord Eldon, in giving judgment (p. 394) said : — *' As
to the word thirds^ the clear intention must be taken to mean her
(a) 6 Sim. 19.
VOL. 11. 22
18«0.
BolU.
Judgment,
(6) IT. &C,Ex.Ca«.,28.
(c) 6 Ves. 386.
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CHANCERY REPORTS.
I860.
RolU.
>. ... ■/
In re
burgess'
TRUSTS.
Judgment,
interest in case of intestacy. If that word did not occur, I doubt
whether the personal estate would not have been included under the
word ' dower.' The word thirds is never used accurately. It is a
sort of expression, in common parlance, descriptive of an interest
upon an intestacy."
That case, it is said by Counsel for the petitioner, does not
apply ; for here the words are, " in lieu and bar of dower or thirds,
to which she might be entitled at Common Law, or otherwise how-
soever ; " and there is no reference to personal estate. Now, if
the words ** or otherwise howsoever " had been omitted, the case in
6 Sim. would have applied. It is difficult, however, to hold, with-
out acting against the opinion of Lord Eldon, in Druce v. Denison,
that the words " thirds," at Common Law, or " otherwise howso-
ever," did not include the claim of a widow, under the Statute of
Distributions.
In Gurfy V. Gurfy (a), the jointure was declared by the settle-
ment to be in full lieu, bar and satisfaction of any dower or thirds
which the wife should or might claim at Common Law, out of all
or any of the said estates, real, personal or freehold, of which the
intended husband was then, or at any time or times thereafter
should become, entitled to or possessed of. Lord Plunket com-
mented on the case in 6 Sim.y on the case before Lord Lyndhurst,
and decided that the wife was barred of all claim on the personal
estate of her husband, under the Statute of Distributions. TJiat
decision was affirmed in the House of Lords (6); and the words
**at Common Law," in the clause in question in the case, were
relied on ; but the House of Lords considered that Druce v. Dent'
son was applicable, notwithstanding the introduction of these words ;
and the Lord Chancellor, in giving judgment, said, ** The words
* Common Law ' in this passage must, therefore, be construed as
equivalent to the terms * according to the general law,' * according
to law,' as distinguished, in ordinary parlance, from Equity ; and,
unless we put this construction on the clause, the word personal^
which is contained in it, would have no effect or meaning whatever."
The other noble and learned Lords concurred ; and it is to be kept
(a) 2 Dr. & Wal. 463. (6) 8 CL & Fin. 759.
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in mind that Lord Lyndharst was the Lord Chancellor when that
case was decided, who had, as Chief Baron, decided the case in
1 Young Sf CoL, to which the House of Lords was referred. In
the present case, the clause does not refer to personal estate ; and,
therefore, the same reason does not applj for giving the meaning to
the words " at Common Law " which was given to these words in
Gurfy V. Gurly ; but I cannot reject the words in this case "or
otherwise howsoever ; '' and I am of opinion, on the whole, having
regard to the observations of Lord Eldon, in Druee v. Denuan^
which case was recognised by the House of Lords, in Gurly v.
Gurly^ and having regard also to the judgment of the Law Lords
in the latter case, that the petitioner, Elizabeth Jane Allen, was
barred by the settlement of 1841 from claiming any part of the
personal estate of her first husband, William Burgess, under the
Statute of Distributions. I shall make a declaration to that effect ;
and I presume the parties will agree upon an order, as to the distri-
bution of the fund, subject, of course, to the right to appeal against
my decision. It would be desirable that there should be a schedule
to the order, explaining the distribution of the fund. I apprehend
that administration should be taken out to the two sons of William
Gurly, before the order is made. There is some difficulty on the
question in this case ; and I think it would be reasonable that the
costs of the parties should be paid out of the fund in Court.
1860.
RolU.
In re
BUaOESS'
TRUSTS.
Judgment,
The ATTORNEY-GENERAL r. EVANS.
June 26, 27.
Nov, 5.
The petition was presented under the Acts of the 10 Ftc, c. 32, A rentcharge
granted to se-
and 12 & 13 Ktc, c. 59 (the Land Improvement Acts), for the care a loan to
an owner in
fee, subject to a rent, by a grant prior to the 14 & 15 Fie., c. 20, haa priority oyer
the rent, nnder the Land Improyement Act, 10 Ftc, c 32, f. 38.
Semble. — ^Where the loan is made to a tenant, the rentcharge has not priority oyer
the rent resenred by his lease, such rent not being a charge or mcombrance, within
the meaning of the 38th section of the Land Improyement Act. <
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172 CHANCERY .REPORTS.
1 860. appointment of a receiver, to pay an arrear of rentcharge due to
the Crown, in respect of loans made to Richard W. Yielding under
the said Acts, for the drainage of the lands of Carrigkerrj. The
loans were made in 1847. At that time, Richard W. Yielding
was seised in fee, under an indenture of the 7th of June 1845,
Statement, wherehy John Evans conveyed the said lan<]^ to the said Richard
W. Yielding, his heirs and assigns, yielding and paying thereout
to the said John Evan^, his heirs and assigns, the rent of £100
a-year, payable half-yearly. The deed contained a clause of distress
and of re-entry, and perception of the rents and profits until the
rent should be satisfied, and a covenant for payment of it.
On the 25tb of January 1860, the Court made an order for
the appointment of a receiver, without prejudice to the question
of priority between the claim of the Crown for the rentcharge,
and that of John Evans for the rent reserved by the deed of
the 7th of June 1845. The sum claimed by the Crown was
£871. A motion was now made on behalf of the Attomey-Grene-
ral, that the receiver should pay the arrears of rentcharge due
to the Crown, and the accruing gales thereof, in priority to the
rentcharge claimed by John Evans. A cross-motion was also
moved by the latter for liberty to proceed at Law for recovery
of the rent.
Mr. Serjeant Lawson and Mr. C KeUy^ for the Attorney-
General.
Argument. The 11th section of the 10 Ktc, c. 32, provides that ^' Any
owner of land^ within the meaning of this Act, who may propose
to improve the same under the provisions of thb Act, may apply
to the Commissioners of Public Works, by memorial, for a loan;"
and the word " owner," by the 6th section, includes " any persoa
who shall be entitled to lands under any grant, lease or any other
deed or assurance, for an estate in fee.'' Yielding was owner
within that definition; and he applied for a loan, and the appli-
cation and notices required by the Act were published. No
objection was made by Evans. The security given for the loan
was the land — not any particular estate in it; and, under the
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38th section, the rentcharge had priority of ** all charges and incum-
brances whatsoever, and whensoever made, save and except quit-
rents and rentcharges. in lieu of tithes, and also save and except
aU charges prior in date," under the 6 & 6 Ftc, c. 89. The rent-
charge, being a charge on the land itself, and not on any particular
estate in it, would have priority over an ordinary rent-service,
and could be recovered after an eviction by the landlord for non-
payment of rent. But this is not a rent-service ; it is a rentcharge.
Since the Statute of Quia EmptoreSy no rent can be recovered on
a conveyance in fee: ZtV., s. 217; Co. Lii.^ p. 143 b, Harg. note.
Such a rent, if secured by a power of distress, is a rentcharge,
and a new purchase, which would have descended to the heirs
ex parte patema : Co, Lit,^ 12 b ; 3 Pr. on Abstracts, p. 64.
The legal operation of the deed of 1845 was a grant in fee by
Evans, and a grant of a rentcharge by Yielding out of the fee
so conveyed to him. The rentcharge was, therefore, a charge and
incumbrance on Yielding's estate : Massy v. 0*Dell (a), which was
a stronger case, for it was the case of a quit-rent reserved by
the Crown. The Renewable Leasehold Conversion Act, and the
14 <& 15 Fife., c. 20, cannot affect the question ; for they are both
subsequent to the fee-farm grant of 1845.
1860.
RdU,
Argument.
Mr. Brewster and Mr. Jellett, contra.
This is a case of great hardship, if the Crown has priority;
for the money was not expended in the drainage of the lands.
Although the rentcharge is created by the 10 Vic., c. 32, the
several Drainage Acts, beiqg in pari mcUeriay may be referred to
in construing its operation. By the first Drainage Act (5 & 6 Vic,
c, 89, s. 110), priority is given to the sum advanced in preference
tOj and in priority over, all incumbrances on such land. That
the word "incumbrance" in that Act was used in its proper
sense, and contradistinguished from "rent," is plain, from the pro-
viso: "Provided, nevertheless, that any quit or chief-rent issuing
thereout, or incumbrance, &c., shall have priority over spch charge,
to the extent of the value of the lands before such improvement was
(a) 9 Ir. Chan. Bep. 447.
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174
CHANCERY REPORTS.
1860.
RolU.
ATTORNEY-
GENERAL
V.
EVANS.
Argument,
effected ; '* and a chief or quit-rent is defined '^ to extend to and
include all rent or rents reserved upon, Or payable out of, or in
relation to, any estate or interest of any person being a proprietor
within this Act, for an estate or interest paramount thereto." Bj
the 10 Ftc, c. 32, s. 38, ''Every such rentcharge to be secured by
virtue of this Act shall take priority of all charges and incum-
brances whatsoever, and whensoever made, except quit-rents and
rentcharges in lieu of tithes ; and also, save and except all charges
prior in date, if any existing, under and by virtue of an Act passed
in the Session of Parliament held in the fifth and sixth years of
the reign of her present Majesty,** &c. This reference to the
Drainage Act shows that, by the 10 Ftc., c. 32, it was not intended
to extend the security, or to give the rentcharge priority over a
rent annexed to an estate paramount to that of the owner, to
whom the advance was made. That is the nature of the rent
in this case. A rent reserved on a grant in fee is different from
an ordinary rentcharge : Brady v. Fitzgerald {a). If there is not
an actual there is a quasi relation of landlord and tenant : Baker
V. Gostling {h) ; Cremen v. Hawkes (c) ; Pluck v. Digges {d) ; In
the matter of the Estate of James Tipping {e)\ and that is a
difference recognised and adopted by the 14 & 15 Ftc, c. 20,
which gives to a rent secured on a grant in fee all the incidents
of a rent-service, except ejectment for non-payment. That Act
is retrospective : Major v. Barton (f). The whole scope of the
Act, and in particular the payment of the sum advanced, in twenty-
two years (section 7)9 shows that the security was to be the interest
of the party to whom the money was advanced. If it were intended
to secure it on the whole fee-simple, why limit the time within
which the advapce was to be paid off?
The Master of the Rolls.
Nov h
Judgment, . A motion has been made, on the part of the Attomey-Greneral
(in pursuance of a reservation contained in an order of the Court, of
(a) 12 It. Eq. Rep. 278.
(c) 8 Ir. Eq. Rep. 153, 503.
(«) 2 It. Jur. 172.
(6) 1 Bing., N. C, 19.
(<0 1 H. & Br. 81,
09 2 Ir. Com. Law Rep. 28.
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the 25th of January), that the receiver in this matter should pay
the arrears of rentcharge due to the Crown, and the accruing
gales thereof, and the petitioner's costs, in priority to the rentcharge,
and arrears thereof, claimed by the respondent, Johiji Evans. The
petition was filed in this case under the Acts of the 10 Re,
c. 32, and 12 A 13 Vic., c. 59? for the appointment of a receiver,
to pay the arrear of rentcharge due to the Crown, and the accruing
gales thereof, payable in respect of loans made under said Acts;
and an order was made, on the 25th of January, appointing a
receiver; but the respondent, John Evans, who claimed to be
paid a rentcharge or fee-farm rent payable to him out of the
lands over which the receiver was appointed, in priority to the
claim of the Crown, the order of the 25th of January concluded
as follows : — ** And the Court doth reserve the question of the costs
of John Evans appearing on this motion, the Court not at present
deciding whether the rent payable to him out of the said lands
has or has not priority over the claim of the petitioner under
the Lands Improvement Act."
The present motion has been now brought forward, the receiver
having funds in his hands; and the question which arises is,
whether the claim of the Crown has priority over the claim of
John Evans?
The facts of the case, so far as they are material to the con-
sideration of the legal question, are as follow: — On the 7th of
June 1845, an indenture was executed by and between the said
John Evans, of the one part, and Richard W. Yielding, of the
other part, whereby, in consideration of the sum of £19919. 19s. 9d.,
paid by the said Richard W. Yielding to the said John Evans,
and also in consideration of the rents and covenants thereinafter
mentioned and reserved, the said John Evans conveyed to the
said William R. Yielding the lands of Carrigkerry, containing
722a. 2r. 30p., situate in the county of Limerick ; Habendum
to the said William R. Yielding, his heirs and assigns, yielding
and paying thereout to the said John Evans, his heirs and assigns,
the rent of £100 a-year, payable half-yearly, on the 7th of Decem-
ber and 7th of June ; and the usual clauses of distress and re-entry
1860.
RoUs,
ATTOBNEY-
OENEBAL
r.
EVANS.
Judgment,
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CHANCERY REPORTS.
1860.
RoUs.
ATTORNET-
OENERAL
V.
EVANS.
Judgment.
are contained in the deed, and a covenant to pay the rent, <&c.
William R. Yieldiing having applied, in the year 1847, for a
loan, to the Board of Works, under the Landed Property Improve-
ment Act (10 Ftc, c. 32^, obtained an order for the loan of
£500, under the provisions of the said Act, which order bears
date the 15th of October 1847, and v^as signed by Sir R. Griffith
and W. J. Mulvany, Esq., two of the then Commissioners. The
schedule to the order states the owner to be William R. Yielding,
and the townland or denomination by which the lands are known as
Carrigkerry, being the lands conveyed in fee-farm by John Evans
to William R. Yielding by the indenture of the 7th of June 1845.
A further loan was made by the Board of Works, to William R.
Yielding, of £1000 ; and the Commissioners now claim an arrear
of rentcharge amounting, as I understand, to £871, together with
the accruing gales ; the effect of which is that, if the claim of
the Crown, in respect of such arrear, in priority to Mr. John'
Evans,' be sustainable, he will not for very many years, if ever,
receive any part of the fee-farm rent or rentcharge payable to
him under the deed of 1845. It appears, from the affidavit of
Mr. John Evans, that he received no notice of the application
for the loans^ from William R. Yielding, or from the respond-
ents Richard M. Yielding and Hugh E. Yielding, or from anyone
on their behalf, or from the Board of Works, or anyone on their
behalf; nor had Mr. John Evans any notice whatever, until long
after the granting of the loans, in the petition mentioned, of the
fact of William R^ Yielding having presented memorials for the
loans ; and Mr. John Evans positively states, in his affidavit,
that he never saw the notices in the Dublin Gazette^ or heard
of the publication thereof, until he read the petition. The affidavit
of Mr. John Evans states that, several months after the death of
William R. Yielding (who died in the latter end of 1853), the said
John Evans heard that a large sum was due to the Commissioners
of Public Works, on foot of loans made to William R. Yielding, for
the drainage of the said lands, and that little more than half the
sum had been expended on drainage or improvements ; whereupon be
addressed a letter to the secretary of the Commissioners, dated the
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2l8t of December 1854,
177
GENBBAL
V.
BVANS.
Judgment.
The letter is set out at length in the I860.
RolU.
affidavit ; and it explains the facts to the Commissioners, and con- ' v '
, ,. . ATTORNEY
ttms the following passage : — *^ As I was no party ta the application
made for this money, my interest cannot be affected by it, excepting
80 far as this additional charge upon the property may prevent a
solvent tenant from taking it ; and, as I h^ye no remedy, except by
distress, my head-rent, in that case, may be lost. It is, therefore,
necessary that the Board should ascertain to what extent the money
advanced for draining this portion of the late Mr. Yielding's pro-
perty has been bona fide expended thereon, in order that the property
may only be charged with what has actually been laid out upon it,
and the sureties called upon for the balance.'' The affidavit fur-
ther states that Mr. John Evans called on the Commissioners to
proceed to recover the arrears, against the parties entitled to the
estate of William R. Yielding, but that they declined to do so ; and
the affidavit of John Evans further states that he believes that, if
proceedings had been taken from time to time to recover the instal*
roents, as they became due, against the said William R. Yielding, or
those representing his estate, or deriving under him, the amount of
the instalments could have been recovered. The affidavit states that
the Board of Works did not answer the letter of Mr. John Evans.
Two affidavits are made, one by the solicitor, and the other by the
land agent of Mr. John Evans, corroborating some of the statements
made by Mr. John Evans. It is impossible to conceive a much more
unjust proceeding than that a person who stands in the position of a
quasi landlord is to be improved out of his property by such pro-
ceedings as I have stated. The question, however, which I have to
decide, is not the justice or injustice of the case, but what is the
construction to be put on the statute?
It haa been contended, on the part of the Crown, that, even in
the ordinary case of landlord and tenant, if the tenant falls within
the definition of an owner under the statute, the Board of Works
may advance loana 'to the tenant without notice to the land-
lord— ^may omit to take the trouble to see that the money advanced
is expended — may lie by for years, without making the tenant pay
the ina^alinents ; and then may appoint a receiver over the tenant'a
VOL. 11. ' 23
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178
CHANCERY REPORTS.
1860.
RolU.
y , '
ATTOBNBT-
OBNBRAIi
EVANS.
■Judgment
intereat, and insist that the landlord is entitled to no rent, until the
large arrear due £or iastalments, accrued bj the neglect of the Board
of Works to proceed sooner, has been paid. So far as that propo-
sition is concerned^ I am of opinion that there is no foundation for
it, and that a rent-service is not a charge or incumbrance, within the
meaning of the section of the statute to which I shall hereafter refer.
. It iSy however^ secondly insisted that the rent payable to Mr.
John Evans, under the deed of the 7th of June 1845, is a rent-
change, Mr. Joba Evans having conveyed the fee tp Mr. Richard
W. Yielding. I think it nuist be so considered (at all events so far
as the claim of the Commissioners of Public Works b concerned),
notwithstanding the provisions of 14 & 15 Fife, c. 20, and that the
rights or priority of the Commissioners, which existed at the time
that Act was passed, cannot be affected thereby. Independently of
that Act, the rent reserved by the deed of the 7th of June 1845
was, I apprehend, a rentcharge. Sir Michael O'Loghlen so held it
to be ia Stevelly v. Murphy (a) ; and although, in Brady v. Fitz-
gerald {b)y the Lord Chancellor differed from Sir Michael O'Loghlen,
as to a bill in Equity being sustainable, where there were no legal
impediments to the recovery of the rent reserved on a grant in fee,
yet his Lordship considered that such rent was a rentcharge. Mr.
Hargrav^^ a high authority on a question of conveyarcing, in a note
to Co. Lit., p« L43 &, note 235, says :»** After the Statute of Quia
Emptor£Sy granting in fee-farm, except by the King, became imprac-
ticable, because the grantor parting with the fee is, by operation of
that statute, without any reversion ; and without a reversion there
cannot be a rent-sec vice, as Littleton himself writes, in section
216; yet I have seen a modern grant in fee, of a large estate in
Ireland, reserving a perpetual rent of great value ; but such rent,
considered as a fee-farm rent, I thought clearly void. However as,
in the case I allude to, the conveyance con^taifred a power for the
grantor, his^ heirs and assigns, to distrain for the rent wiien in
arrear, and also a power to enter, and receive the profits, until
all arrears should be paid, the rent might be good as a rent-
charge ; and so, on being consulted, I held it to be." It is, therefore,
(a) 2 Ir. Eq. Bep. 456. (6) 12 Ir. Eq. Rep. 279i
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clear that, without reference to the Act of the 14 db 16 of The
Qmeen^ c 20, the rent reserved on the indenture of the 7th of June
1845 was a rentcharge ; and, without oflbring any opinion as to the
eff^t of that Act, as to cases occurring after the statute, I an of
opinion that the legal rights and priority of the Crown which existed
when the Act was passed (which was passed subsequetit to the
Umna) were not affected by that Act.
It is now, therefore, necessary to consider some of the sections
of the statute 10 Ftc, c. 32, under which Act the loans were
made to Mr. William R. Yielding. The 37th section provides
that, in case any loan shall be made under the Act^ the
lands specified ia the order of the Commissioners of Public
Works shall, from the date of such order, become charged with
the payment to Her Majesty of an ananal rentcharge of £6.
10a. Od. for every £100 of every such loab, from time to time
advtincdd, including certain costs and CKpeoses^ in said iMictaoB men-
tioned ; a^d the S^h section enacts that, ** Ev^y such rentcharge^
to be secured by virtue of this Act, shall take priority of all charges
and incumbrances whatsoever, and whensoever made, except qvut-
renta and rentcharges in lieu of tithes, and also save mnd except all
charges prior in date, if any, existing under and by virtae of an
Act passed in the Session of Parliament held in the fifth aad sixth
years of the reign of Her present Majesty, entitled ' An Aot to
Promote the Drainage of Lands, and Improvement of Navigatioo
and Water-power, in connexion with kuth Drainage in Ireland,' and
two other Acts since passed, amending same Act, or under or by
virtae of this AcU" The 39th section then provides the mode of
recovering the rentcharge, by the presentation of a petition in the
name of the Attorney-General, for the appointment of a receiver.
The present petition was presented under that section.
The only question, I apprehend, is, whether the rentcharge reserved
by the deed of the 7th of June 1845 is a *' charge and incumbrance'^
within the 38th section ? I am of opinion that it is. I had occasion to
consider the question whether a rentcharge was a charge or incum-
brance, in the case of Massy v. G^Dsll (a) ; and the authorities
(a) 9 Ir. Chan. Bep. 447, 448.
JiidgnmU*
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1860.
EoUs.
ATTORKBT-
OBNERAL
V,
EVANS.
Judgment,
180 CJIANCERY REPORTS.
to which! then referred establiBh that it is. That decision was
affirmed on appeal. It is. not necessary to go through the cases
again. I am, therefore, of opinion that I must make the order
sought by the Crown, and direct that the receiver shall pay the
arrears of rentcharge due to the Crown under the provisions of
the 10 Ftc, c 32, and, the future accruing gales thereof, and the
Attorney-General's costs, in priority to the rentcharge claimed by
the said John Evans.
With respect to the application made by the respondent, that I
should permit him to proceed at Law, I think I should not do
so. On reference to the clause of re-entry, in the indenture of the
7th of June 1845, it is not a clause of forfeiture for non-payment
of the rentcharge thereby reserved ; it is only a power to enter,
and receive the profits until the arrears are satisfied ; and, as Little-
ton lays down, *^ The feoffor shall have the land, but in manner as
and for a diitress, until he be satisfied of the rent due,** &c The
authorities on this subject were referred to in Smith v. Smith (a).
If I were to permit the respondent either to distrain or bring an
ejectment, and enter, the effect would be to give him priority over
the Crown, in contravention to the 38th section of the 10 Vic,^
c. 32. I regret to be obliged to make an order against the respond-
ent, which I consider to be very unjust ; but the terms of the
sUtute are clear. The injustice does not arise from the statute,
but from the Board of Works not having enforced payment of
the instalments as they fell due.
(«) 5 Ir. Chan. Bep. 07.
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CHANCERY REPORTS. 181
1860.
DUCKETT V. GORDON. ^^^ j3
Nov. 3.
The petition in thig matter was filed for the administration of the A, ^^^^
joined in 'a
assets of Colonel Charles Edward Grordon, by William Dackett, who settlement ex-
ecnted on the
claimed to be a specialty creditor, under the following circumstances, marruige of
his danghter.
In 1843, William Duckett was seised for life of the lands of which con-
Rathellin, with power, when in possession, to charge them with a that he was de-
fortane for any wife he should marry, at the rate of £10 per cent., her,°LaiSrw
for each £100 such wife should bring or give to him as her portion. ^^ I2m*^or
William Duckett was also seised in fee of the lands of Rathlyon ^ he^iiihtbe
and Coppenagh. In January 1843, William Duckett married entiUed to dis-
*^*^ * ^ * pose of, which
Harriett Isabella Anne Gordon, the daughter of the testator Colonel child's share it
was calculated
Grordon, and a settlement was executed in contemplation of the would be at the
least £5000,
marriage, on the 17 th of January 1843. That settlement recited but the same,
that it had been agreed that, in order to make a suitable provision amount there-
for the intended wife, during the lifetime of William Duckett, by be' a^ertainiMl
way of pin-money, and after his death by way of jointure, the said ^^ .^d1;he
William Duckett should convey the said several lands, upon the trusts jjjjjj^^ij ^
thereinafter expressed : — " And whereas the marriage portion of ? . po^er to
*^ ^ '^ jomtnre to the
the said Harriett I. A. Gordon is to be paid to the said William amount of £10
per cent, on
Duckett, and whereas the said Charles Edward Grordon is minded the fortune
which he
and desirous to give to his daughter the said Harriett I. A. Gordon, should reoeiTe
with his wifo,
as a marriage portion, such sum or child's share as he may be appointed a
jointure of
£500 a-year,
which was also collaterally secured on other lands, not the subject of the power.
The daughter died in G.'s lifetime.
Hetif that the recital amounted to an absolute covenant that his daughter
should haye, on his death, an equal share of his personal estate with his other
children.
SemhU — If it was not a covenant, it would have amounted to a binding repre-
sentation to the same effsct.
Held alto, that the obligation was not discharged by the daughter's death in
his lifetime.
Held aUo, in calculating the amount payable under the covenant, sums advanced
to other children by the testator in his lifetime should be taken into account
and be added to the assets.
Held al99t that interest should not be calculated on the sums so advanced.
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CHANCEEY REPORTS.
1860.
RolU.
StaiemenL
entitled to dispose of, which child's share it is calculated will be at
the least £5000, bnt the same or the precise amount thereof cannot
be ascertained until the decease of him the said Charles Edward
Grordon ; and whereas, in the event of the portion of the said Har-
riett I. A. Gordon falling short of £5000, the said William Duckett
could not charge the said lands of Rathellin with a jointure of £600
per annum, it was agreed, by and between the said parties, that the
other lands hereinafter mentioned, and of which the said William
Duckett is so seised in fee-simple, should be charged and incum-
bered with the entire of said sum of £500, or so much thereof
as the said William Duckett would be unable to charge upon the
said lands of Rathellin, in aid of and subsidiary to the charge herein-
after to be made upon the said lands of RathelUn ; it being the
true intent and meaning of the parties hereto, that, under any
circumstances, the said Harriett I. A. Gordon should have her join-
ture of £500 effectually charged upon the lands hereinafter granted
and appointed, or intended so to be : " and in pursuance of said
agreement, and in consideration of the marriage, William Duckett
oonveyed to trustees the said lands of Rathlyon and Coppenagh, of
which he was seised in fee, for ninety-nine years, in trust to pay
out of the said lands £100 a-yeat pin-money, and, subject thereto,
to the use of William Duckett for life; and the said William
Duckett, in consideration of the said intended manriage, and in
consideration of the portion or fortune of the said Harriett I. A.
Gordon, agreed to be paid, as thereinbefore stated, to the said
William Duckett, and in pursuance of his power to jointure, appoint-
ed a jointure of £500 a-year for the said Harriett I. A. Grordon^
and further conveyed the fee-simple lands, upon trust that, in case he
did not receive a fortune with the said Harriett I. A* Gordon suffi-
cient to enable him, under the said power, to charge the jointure of
£500 on the said lands of Rathellin, the rents of the fee-simple lands
should be applied to pay such jointure, or to make up the deficiency
thereof.
The marriage was celebrated shortly afterwards, and there was
issue of it, three sons and one daughter. William l>uckett died
previously to the 1 7th of February 1854. Colonel Gordon made
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CHAl^CERY REPORTS.
183
hi» will on the 17th of February 1854, by whioh be recited that he
had given £2000 to his eldest son, Charles Edward Parke Gordon^
and £2000 to hia youngest son, Johu Henry Gordon ; ha bequeathed
£2000 to Charles Duckett, the youngest son of bia deceased daugh-
ter, and, if he should die under twenty-one, he bequeathed the said
£2000 to his grand-daught^, Harriett, Duckett, and be, bequeathed
a specific sum of £500 to be divided between his said two sons,
aod he devised and bequeathed some other property to his sons
and to bis wife, and appointed his sons and Alexander Jopp his
ea^eeutors, and made his sons residuary legatee^. The ticms of the
will are atated in the jnd^nent, injra^ p. 187-
The petition having been referred to Master Litton, under the
15th section of the Court of Chancery (Ireland) Regulation Act
1850, he, by a decretal order, made on the 16th of June I860,
deoUred that, by the settlement of the 17th of January 1843, the
testator, Charles Edward Gordon, contracted to give to the peti-
tioner, William Duckett, as much money as either of his sons should
thereafter receive from him, either by gift in hjs; lifetiin^ or by
bequest, or intestacy, and directed accounts accordingly;
The respondents, the sons and executors of the petitioner,
appealed from the order.
1860,
RolU,
DCJCKBTT
V,
QORpON.
Statement.
Mr. BrewsUr and Mr. F. White^ for the petitioner.
First; the recital in the settlement was binding on the testator
and his assets, as a covenant : Hollis v. Cart (a) ; Wood v. !%€
Copper'nun$r9 Company [b)v Barkiporih v. Young^ic); Jones v,
How{d)i ov as a representation: Hodgson v. ffuichimon. (e)*
Secondly; the expression ** child's share," in the settlement,
meana, that, there shall be an equal, diviaion of his property
among his children, so that Mrs. Duckett shall get, an eqfial
share of it : Wmia v. Blcufk (f) ; to the exclusion of specific
legacies ; and in. taking account of the " child's shai^es," thfd tes-
tator's sons are bound to bring into hotchpot the sums advanced
(a) 1 Vem. 431.
(c) 4 Drew, la
(e) 1 Sim. & St. 525.
(6) 7 Man.. G. & Sc 906.
((0 7 Hare, 267-
f/J 5 Via. Ab. 522, pA 34.
Argvcmiad.
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184
CHANCERY REPORTS.
1860.
EolU.
DUCKETT
r.
GORDON.
Argument,
Judgwunt.
to them by the testator in his lifetime, and interest from the date
of the advances ; for the testator could not act in derogation of
to the contract which he had entered into : Andrewes v, George (a) ;
Westcott V. Culliford{b).
Mr. Warren and Mr. Forbes Johnson^ contra.
First; no case has been cited where a mere recital, without
something more, has been held to be a covenant : Farreli v. ffild-
ridge (e). The recital is so vague and uncertain, that it would be
very difficult to carry it into effect ; but if any intention can be
collected from it, it would appear to be that Mrs. Duckett was to
receive a portion conditionally on her surviving her £Etther.
Secondly ; if it amounts to an unconditional covenant, the true
construction of it was, that the testator had an unlimited power of
disposition, during his lifetime, and his daughter would be entitled
only to a share of the assets of which he should die possessed :
Logan v. Wienkoli (d) ; Lord Si. Leonards* Handy Book of Pro-
perty LaWf p. 106 ; Jones v. Martin (e) ; Randall v. Willis (f) ;
Eyre v. Munro (g).
The Master of the Rolls.
This case is an appeal from the decretal order of E. Litton, Esq.,
the Master in the matter, which order was signed on the I6th of
June. The petition was filed by the petitioner William Duckett,
Esq., claiming to be a creditor by covenant, of the late Colonel
Charles Edward Gordon deceased, whose assets are sought to be
administered in this suit. The facts of the case are as follow : —
The petitioner William Duckett was, on and previous to the 1 7th
of January 1843, seised for life of the lands of Rathellin, with a
power to the said William Duckett, when in possession, to charge
said lands with a jointure for any wife he should marry, at the rate
of £10 per cent, by the year, for each £100 such wife should bring
(a) 3 Sim. 893.
(c)4C.B,840.
(e) 6 Vc8. 265.
(6) 8 Hare, 265.
(<0 6 CI. & Fin. 610.
CfJ 5Vei.261.
(g) 3K.it, J. 309.
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CHANCERY REPORTS.
185
1860.
RoUs.
DUCBLETT
V,
GORDON.
or give to him, the said William Duckett, as her portico. I have
not seen the instrument creating the power, but I have stated it from
a recital contained in the settlement which I shall just now refer to.
The said William Duckett was also seised in fee of the lands of
Rathljon and Coppenagh, situate in the county of Cnrlow. The judgment,
said William Duckett being so seised, a settlement was executed, in
contemplation of his marriage with Harriett Isabella Anne Gor-^
don, daughter of the said Colonel Gordon. The settlement bears
date the 17th of January 1843, and was made and exe*
cated by and between the said William Duckett, of the first part,.
Colonel Gordon and his said daughter, of the second part, and
certain trustees, of the third and fourth parts ; and, after reciting
the facts I have stated, it further recites that, upon the treaty for '
said intended marriage, it was agreed that, in order to make a
suitable provision for the said Han-iett I. A. Gordon, as well during
the lifetime of the said William Duckett, by way of pin-money, as,
after his decease, by way of jointure, he, the said William Duckett,
should settle, convey and assure the said several lands and premises
upon the trusts thereinafter expressed ; and then there is a recital
in the following words : — '' And whereas the marriage portion of
the said Harriett Isabella Anne Gordon is to be paid to the said
William Duckett, and whereas the said Charles Edward Gordon is
minded and desirous to give unto his daughter, the said Harriett
Isabella Anne Gordon, as a marriage portion, such sum or child's
share as he may be enabled to dispose of, which child's share it is
calculated will be at the least £5000, but the same, or the pre-
cise amount thereof, cannot be ascertained until the decease of him
the said Charles Edward Gordon ; and whereas, in the event of the
portion of the said Harriett Isabella'Anne Gordon falling short of
£5000, the said William Duckett could not charge the said lands
of Rathellin with a jointure of £500 per annum, it was agreed, by
and between the said parties, that the other, lands hereinafter men-
tioned, and of which the said William Duckett is so seised in fee-
simple, should be charged and incumbered with the entire of said
Bum of £500, or so much thereof as the said William Duckett would
be unable to charge upon the said lands of Rathellin, in aid of, and
VOL. 11. 24
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186
CHANCERY REPORTS.
1860.
RoUs.
DUCKETT
r.
GORDON.
Judgment,
subBidiary to, the charge hereioafter to be made upon the said lands
of Rathellin ; it being the true intent and meaning of the parties
hereto that, under any circumstances, the said Harriett Isabella
Anne Gordon should have her jointure of £500 effectually charged
upon the lands hereinafter -granted and appointed, or intended so to
be ; " and, after such recitals, it was, by the said indenture, witnessed
that, '* in pursuance of the said agreement, and in consideration of
said intended marriage, *' &c., the said William Dqckett conveyed
the said lands of Rathellin to the said trustees, of the fourth part, for
the term of ninety*nine years, on trust that they should, out of the
rents and profits, pay £100 a-year to the said Harriett, by way of
pin-money ; and, subject to the said trust, to the use of said William
Duckett for his life ; and the indenture farther witnessed that,
'^ in consideration of the said intended marriage, and in consideration
of the portion or fortune of the said Harriett Isabella Anne Gordon,
agreed to be paid, as hereinbefore stated, to the said William
Duckett, *" he, the said William Duckett, in pursuance of the re-
cited power of jointuring, charged the said lands of Rathellin with
a jointure of £600 a-year for the said Harriett ; and the indenture
further witnessed that, '* in further pursuance of the said agreement,
and for and in consideration of the SMd intended marriage, " &c^
the said William Duckett conveyed to the said trustees, of the third
part, the said lands of which the said William Duckett was seised
in fee, upon trust that, in case the said William Duckett did not, in
his lifetime, receive a portion with the said Harriett sufficient to
enable him, under the power hereinbefore mentioned, to charge the
jointure of £500 on the said lands of Rathellin, that the rents of the
fee-simple lands, so conveyed to the said trustees, of the third part,
should be applied to pay such jointure, or to make up the deficiency
therein* The marriage took place shortly afterwards, and the peti-
tioner William Duckett, and his said wife, had four children, three
sons and a daughter.
The said Colonel Charles Edward Gordon had three children,
viz., his said daughter Harriett I. A. Duckett, and two sons, Charlea
Edward Parke Gordon and John Henry Gordon. The said Harriett
I. A. Duckett died in her father's lifetime, and before the making
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CHANCERY REPORTS.
187
of his will, hereinafter mentioned, and her father made no provision for 1 860.
....... , , . . . . Rolh,
her m his lifetime, end made no payment to the petitioner m porsuance
of the e^yenant or contract contained in the said marriage settlement.
The said Colonel Charles Ekiward Gordon made his will, dated
the 17th of February 1854, and he thereby directed his debts and judgment.
funeral expenses to be paid ; and after reciting that in his lifetime the
tesUtor had given £2000 to his eldest son, Charles Edward Parke
Gordon, captain in the 75th Regiment, for the purehase of his com-
mission, and farther reciting that the testator had given, in his
lifetime, £2000 to his youngest son, John Henry Gordon, to set
him up in the business of wine-merchant, the will proceeds thus : —
'' And now that my beloved daughter Harriett Isabella Anne Gor-
don has died, I give, devise and bequeath to her youngest son,
Charles Duckett, the sum of £2000, upon my death, to be held in
trast for him until he attains the age of twenty-one years, and the
interest thereon to be used towards his education, and such expenses
as may be deemed necessary during his minority;" and in the
event of the said Charles Duckett dying under twenty-one, the
testator bequeathed the said sum of £2000 to his grand-daughter,
Harriet Duckett. The will then proceeds thus: — '^ And whereas, on
the death of the Hon. Mrs. Hutcheson, I am entitled to the sum of
£500, bequeathed to me under the will of the late Lord Glenbervie,
it is my will and desire that the said sum of £600 shall be divided
between my sons Charles Edward Parke Gordon and John Henry
Gordon." The testator then bequeathed a sum of £1000, to
which he stated his representatives would be entitled, in the
event of his pre-deceasing his sister, between his said sons. The
testator then bequeathed his share of his fisheries on the river Dee
to his son Charles Edward Parke Gordon. Then follows a bequest
to testat^n^'s wife, of some trifling articles, and he appointed his said
sons, and his son-in-law, the petitioner, and Alexander Jopp, his
executors, and made his said sons his residuary legatees. The peti-
tioner William Duckett, and the respondent John Henry Gk>rdon,
proved the will, saving the rights of the two other executors.
Charles Edward Parke Gordon denies the accuracy of the recital
in his father's will, that he had given him £2000, and he says he
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188
CHANCERY REPORTS.
1860.
Rolls.
DUCKETT
r.
GORDON.
Judgment
only received £1450. ^ L believe the other son also disputes the snm
alleged to have been advanced to him.
The first question which arises is, whether there was any covenant
or contract, by the said Colonel Gordon with the petitioner, con-
tained in the settlement of the 17th of January 1843 (executed on
the marriage of the petitioner with Harriett I. A. Gordon, daughter
of the said Colonel Gordon), to pay to the petitioner any sum as the
portion or fortune of the said Harriett I. A. Gordon, or any repre-
sentation made by the said Colonel Gordon, by said settlement, as
to his intentions, binding on him and on his assets?
Secondly; if there was any contract or agreement binding on
the late Colonel Gordon, is the construction put upon such contract
by the Master the right construction?
Thirdly* ; if there was a binding contract, and if the construction
put upon it i>y the Master is not the true construction, what is the
construction to be put upon it ?
Fourthly ; did the death of Harriett I. A. Duckett, in her father's
lifetime, render the performance of the contract impossible ?
Fifthly; if there was a contract binding on the late Colonel
Gordon, at the time of his death, and if the construction which I
think should be put upon the contract be correct, how is such con-
tract now to be carried into effect ?
With respect to the first question, I am of opinion that there was
in the said settlement a covenant or contract entered into by the late
Colonel Gordon with his son-in-law, the petitioner. The terms of
the contract are very vague ; but the recitals in the settlement show
that the petitioner was tenant for life of the lands of Rathellin, and
had a jointuring power entitling him to charge a jointure at the rate
of £10 a-year for every £100 his wife "should give or bring to
him,'* the said William Duckett, as her portion. It was clearly
intended by the parties to the settlement that the jointuring power
should be executed, although it may be very doubtful whether the
agreement of the late Colonel Gordon, contained in the recital I
have read, authorised the execution of the power. If it was intended
that the power of jointuring shoftld be exercised, it must, I think,
have been intended that the said recital should amount to a contract
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CHANCERY REPORTS.
189
binding on the late Colonel Gordon. That a recital maj amount to
a binding contract is establbhed hj the authorities which have been
referred to. That the recital was intended to amount to an agree-
ment is, fn my opinion, also established, by what follows the recital;
for it is by the deed witnessed that, ''in consideration of the intended
marriage, and in consideration of the portion or fortune of the said
Harriett I. A. Gordon, agreed to be paid, as hereinafter stated*, to
the said William Duckett," he the said William Duckett conveyed
the lands of Rathellin to the trustees; and the power to jointure
purports to be executed. I concur, therefore, with the Master, in
his opinion that there was a binding contract entered into with the
petitioner by the late Colonel Gordon, to give a marriage portion
with his daughter, to be paid to the petitioner on Colonel Gordon's
death. I doubt whether it is open to the appellants to raise this
question now, as it appears, from the recitals in the Master's order,
that he made an order, dated the 16th of September 1858, which
has not been appealed from, to pay the petitioner a part of his
claim, which was accordingly paid, and which should not have been
paid except on the assumption that there was a contract binding on
the late Colonel Gordon. As I am of opinion that there was a tu>n-
tract, it is not necessary to decide whether, if there was no contract,
there was a representation of intention, binding on the late Colonel
Gordon, and on his representatives. The principal authority on the
latter point is Hammersley v. Biel (a). I think, however, there is
strong ground for holding, on the authority of that case, that there
was a representation of i|ptention on the part of the late Colonel
Gordon, binding on him, and on his assets. A difficulty arises, as to
my finally deciding, at present, whether there was such contract or
representation, on the ground that the minor, Charles Duckett,
was not represented by Counsel or solicitor or guardian, before the
Master, or before me ; but I shall advert more particularly to that
difficulty just now ; it was not raised by Counsel.
Thre second question is, if there was a contract, or agreement or
representation, in the settlement, binding on the late Colonel Gordon,
M the construction put upon it by the Master the correct construction?
(a) 12CL&F.45.
1860.
Rolls.
DUCKETT
V.
OOBDON.
Judgment.
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CHANCERY REPORTS.
1860.
RolU.
Judgment,
The Master has declared by his decretal order that, according to the
true coDStrnction and efibct of the marriage settlement of the I7tb of
January l<84d, the testator, Charles Edward Gordon, contracted to
give to the petitioner, William Duckett, as much money as either
of his sons should thereafter receive from him, either by gift in
his lifetime, or by bequest or intestacy. I am of opinion that that
declaration is erroneous. I understand thut the Master made the
declaration on the authority of the cases of Willis v. Block (a) and
Logan v. Weinholi (6) ; but I do not think that those eases are appli-
cable, having regard to the terms of the settlement in the present
case. Suppose the testator had property in his lifetime of the value
of £6000, which, I believe, was about the value, and that he had
advanced to one of his sons in his lifetime £6000, and left assets,
after payment of funeral expenses and debts, to the amount of
£3000, the petitioner would have been entitled, according to the
Master's decision, to the whole of such assets, and the other son
would have been entitled to nothing. So also, according to the
construction put by the Master on the contract, if the testator
had not advanced either of his sons in his lifetime, and had given
nothing, or only 0, nominal sum, to one or both of his sons, and
had bequeathed his property to a stranger, the petitioner would
have been entitled to nothing, or only to a sum equal to such
nominal sum bequeathed to one of the sons. Many other cases
might be suggested, equally inconsistent with what Was the inten-
tion of the parties to the settlement. The words of the recital are
as follow : — *' And whereas the marriage portion of the said Harriett
Isabella Anne Gordon is to be paid to the said William Dnckett ;
and whereas the said Charles Edward Gordon is minded and desir-
ous to give unto his daughter, the said Harriett, as a marriage
portion, such sum or child's share as he may be entitled to dispose
o^ which child's share it is calculated will be at the least £5000,
but the same, or the precise amount thereof, cannot be ascertained
until the decease of him, the said Charles Edward Gordon ; " and
t)ie recital then proceeds to provide for the event of the porticm
being less than £5000. The question is, what is the meaning of
(a) 4 Row. 170. (*) r CL & F. 61 1.
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the term "child's share?** I cannot concur with the Master's
opinion on that point, as stated in the declaration contained in
the decretal order.
Thirdly; if there was a contract or a reprsentation hinding on
the late Colonel Gordon, and on his assets, and, if the construc-
tion put upon the settlement by the Master is not the true con-
struction, the question is, what is the true construction? That
depends, as I have already slated, upon the meaning of the
term ^* child's share." I am of opinion that the contract of the
late Colonel Grordon was, that his daughter Harriett should have
as her portion, on his death, an equal share of his personal estate
witk his other children, and that such portion should be paid to
the petitioner.
In Lord Si, Leonards* Handy Book on Property Law, 7th ed.,
pp. 157, 158 (a work containing a greater aBH>unt of learning than
any work of a similar size), it is thus laid down: — *'It is not
unusual for a parent, upon a daughter's marriage, to agree to leave
her at his death a fortune equal to his other children. Such an
agreement does not confine or restrict the father's power ; he may
alter the nature of his property from personal to real, or he may
give scope to projects, or indulge in a free and unlimited expense ;
but he win not be allowed to entertain mere partial inclinations
towards one ohild at the expense of another. If his partiality do
rise so high, and he will make a difference, he must do it directly,
absolutely^ and by surrendering all his own right and interest ; he
must give out-and-out; he must not exercise his power by an
act which is to take effect not against his own interest, but only at
a time when his own interest will cease. He cannot, for instance,
give property in his lifetime to one child, reserving the interest
to himself; for such a gift is in fact testamentary, and in fraud
of his agreement."
In the case of Jones v. Martin, reported in a note to 5 Veeey,
p. 260, the law was laid down in the House of Lords, in the manner
stated by Lord St. Leonards^ in his Hantfy Book. The case of
Jones ▼. Martin is referred to by Vice- Chancellor Wood, in B$fre
T. Munro (a). In the case of Barkteorik v. Youn^ (6), a question
(a) 3 Kay & J. 309. {b) 4 Drew. 18.
I860*
RolU.
DUCKBTT
v.
GORDON.
Judgment.
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RoU$.
DUCKETT
v.
QOBDON.
Judgment,
arose on demurrer, as to the effect of a marriage contract entered
into with the plaintiff, on his marriage with the daughter of R. C
Young. The contract of R. C. Young with the plaintiff, as stated
in one part of the bill, was that he would, at his death, leave to his
daughter an equal share of his property with his other children ; and
in another part of the bill, the contract would appear to have been
that, at his death, his daughter should have an equal share with his
other children. That is, I apprehend, what was meant in this case
by *' a child's share." Vice-chancellor Eindersley, in his judgment
on the demurrer j[p. 18), considered that there was no difference
between those two Statements in the bill, and said : — ** According to
either of the two forms of expression, the promise was capable of
being performed in two ways — either by bequeathing to his daugh-
ter by will an equal share, or by dying intestate, and leaving his
children to share equally, under the Statute of Distributions." That
case differs from the present only in this, that here the contract was
that the share of Harriett should be paid to the petitioner ; but that
does not affect the question as to what was the meaning of the term
" child's share." A question arose in the above case of Barkwarth
V. Young^ to which I shall advert just now, in considering another
part of this case.
In the case oi Janes v. How{a\ decided by Vice-Chancellor
Wigram, which was referred to and considered by Yice-Chancellor
Eindersley, in Barkworth v. Young^ a father, on the marriage
of his daughter with the plaintiff, covenanted with the plaintiff
that he would, by deed or will, leave and bequeath to his daugh-
ter an equal share with his other children. That is, I apprehend,
what in the settlement in the present case is called ^* a child's
share." The bill in that case was dismissed, on a ground that I
shall advert to just now, that the contract became incapable of per-
formance, by the death of the daughter without issue in her father's
lifetime ; but it. was not doubted that the contract was in its in-
ception a valid contract, and that a father might contract with the
intended husband of his daughter, that he would give or leave her
an equal share of his property with his other children ; i. e^ in other
words, that her portion was to be " a child's share." If the term
(a) 7 Hare, 267.
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"child*!! share/' in the present case, meant that Harriett shonld
have an equal share of the testator's property, and that the con*
tract in the present case was substantially the same as in the
cases I have referred to, except that the portion of Harriett was
to be paid to the petitioner, the declaration in the Master's order
is incorrect in declaring that, according to the true construction
of the settlement of the 1 7th of January 1843, the testator con-
tracted to give to the petitioner as much money as *' either of his
sons should thereafter reeeive from him, either by gift in his
lifetimci or by bequest or intestacy .'^
The next question which arises (suppdaing there was a valid
and binding agreement or representation made by the testator)
is, whether he was discharged from its obbgations by the death
of Harriett I. A. Duckett in his lifetime? In Jon€9 v. How{a\
to which I have already referred, the father, on the marriage
of his daughter, covenanted with the plaintiff that he would by
deed or will give, leave and bequeath to the daughter an equal
share of his real and personal estate with his other children. She
died in her father's lifetime, ^ without issue;' and, on the latter
ground, it was held that Ibe agreement was incapable of being
performed. That case was considered by Vice-Chancallor Ein-
deraley, in the case of Barkworih v. Young (b)y the marginal
note to which is not correei; and, having regard to the judg^
ment of the Yice-Chaocellor, commencing at page 18^ and that
Harriett L A. Duckett left issue^ the contract would have been
capable of p^ormanoe if^ in the present case, it had been to
give or leave a child*s share to the said Harriett. But no diffi-
eoltj auch as arose in Barbeorih v. Young ariaes here, as the
ooBtraet in this case was, that the portion of the said Harriett
alioold be paid to the petitioner; and the late Colonel Grordon
might have made a will, leaving such portion to the petitioner,
whidi, I apprehend, would have been a performance of the con-
iract* I do not, therefore, think that the death of Harriett in
ibe lifetime of her father rendered the contract or representation of
JuigwteM*
(a) 7 Hare, 267.
TOL. 11.
(*) 4 Drew. 1.
23
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Rolh.
Judgment.
the late Colonel Gordon, contained in the settlement, incapable of
performance.
The next question which arises is, as to the manner the contract
should be carried into effect, assuming that the construction which
I put upon it be correct. If the contract of the late Colonel
Gordon had been similar to the agreement in Barkworth v. Youngj
that he would, at his death, leave to his daughter an equal share
of his property with his other children, or that his daughter should
at his death have an equal share with his other children, according
to the judgment of the Vice- Chancellor (p. 18), it could have been
performed in two ways, if Harriett had survived her father, ^' either
by bequeathing to his daughter by will an equal share, or by dying
intestate, leaving his children to share equally under the Statute of
Distributions;" and, in page 20, he states :—^'* Now here, it was
manifestly the intention of the parties that, in one way or the other,
the daughter should have an equal share of the testator's property."
Any testamentary disposition which would have prevented the
daughter taking an equal share of the testator's property would,
according to what is laid down by Lord Si. Leonards^ have been
a fraud on the agreem^t. Now if, in the case of Barkworth
v. YounQy the term used had been ** child's share," instead of
*^ equal share of his property with other children," I should have
considered the meaning to be the same. If so, the contract in
the present case being that the portion should be paid to the
petitioner cannot vary the amount payable. The amount payable
was, in my opinion, an equal share; that is (the late Colonel
Gordon having had three children), one-third of his property ;
and, in calculating what that one-third would amount to, I think
that the sums advanced to the two sons should be taken into
consideration, and, being added to his assets, the petitioner would
be entitled to such sum as would be equal to one-third. The
two sons would not, of course, be bound to bring their shares
into hotchpot, unless they claimed a part of the assets ; but, as
I understand the argument addressed to me, they deny that the
^ill correctly states the sums advanced to them by the late Colonel
Gordon in his lifetime; and they contend that, if the constmction
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which I put on the settlement be correct^ they are entitled (bring-
ing the sums so advanced into hotchpot) each to a child's share.
A question was raised by the petitioner, as to the two sons being
charged with interest on the sums to be brought into hotchpot;
but I am not aware of any case in which, where sums advanced
are brought into hotchpot, interest has been charged. When I speak
of money being brought into hotchpot, that expression is, strictly
speaking, only applicable to cases under the Statute of Distributions.
I overlooked, during the argument, my attention not having
been called to the fact, that the minor son of the petitioner,
to whom £2000 was bequQiithed by the late Colonel Gordon, had
an interest adverse to that of the parties who appeared on the
appeal, and had an interest in disputing the claim of the two sons
of the late Colonel Gordon ; and I sent in an order, shortly after the
Court rose last Sittings, which recognised the claim of the two sons.
I think that the minor ought to have been represented both in the
Master^s office and in this Court ; and I accordingly afterwards put
a stay on the order. The way in which the claim of the two sons,
supposing the construction I put on the settlement to be correct, is
sought to be established is this : — The contract, as I construe it, is,
that the portion of Harriett L A. Gordon was to be an equal share
of the property of the late Colonel Gordon with his other children ;
and the two sons contend that this in effect was a contract by the
late Colonel Gordon, that his personal property should be equally
divided between all his children. This is a question, however, which
Counsel for the minor should have been heard upon. The two sons
were no parties to the settlement ; and it might be argued that there
was no contract with them, and no contract with the petitioner for
their benefit ; and, if there was, that neither the marriage consider-
ation, nor any other consideration in the settlement, extended to
them. Suppose that the petitioner had adopted the course of making
no claim on foot of the covenant, leaving the assets to be applied to
the payment of the legacy to the minor, could the sons of the late
Colonel Gordon have filed a cause petition, claiming under the agree-
ment in the settlement ? Or, if the suit had been instituted in the
1860.
RolU,
Judgment.
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CHANCERY REPORTS.
1860.
Judgm^m*
name of the minor, to raise the amount of his legaey, and the
petitioner had filed no charge in such suit on foot of the eoTenant,
could the sons of the late Colonel Gk>rdon have claimed nnder the
covenant ? If not, the question then arises, can the fact of the peti-
tioner claiming under the covenant give rights to the two sons of the
late Colonel Gordon to make a claim as creditors, and thus defeat
the bequest to the minor ?
I think that Cornnsel on both sides will, on consideration, see
that the minor ought to have been represented in the suit, and that,
if he is not represented, the decision of the Court would not be
binding on him. I shall be willing to sanction any course which
will lead to the least expense, provided there be a bona fiit ap-
pearance, by Counsel of eminence, on the part of the minor.
There is doubt on the point, which was not argued before me, the
minor not having be^n represented. If such objection had been
made on the part of the minor, it might, perhaps, have been con-
tended that the covenant was substantially the same as the cove-
nant in BarkmwrA v. Knm^ ; and that it was a contract with the
petitioner, that his intended wife and her two brothers should each
have a child's share, t. e., an equal share of Colonel Gordon's per-
sonal estate ; and if so, and supposing that there was no objection
to the claim of her two brothers, except the want of consideration,
that, although a Court of Equity will not, upon a bill or cause
petition filed by a volunteer, give him any assistance, yet, upon a
Inll or cause petition filed by any of the parties to the deed, from
whom any valuable consideration moved, all the trusts will be car-
ried into efleot, even those in favour of volunteers. That was
decided by Vice^ChanceUor Bruoe, in DavenpoH v. Bishop («),
which decision was affirmed by Lord Cottenham, on appeal (6).
The question, however, is, whether I am justified in deciding
diis point, in the abeenoe of the minor ? Th^ Master has declared,
by his order, that Uie legacy to the minor, Charles Dnckett, ^* has
altogether &iied of efiect, by reason of there being no assets or
property of the testator to answer the same." That was the reeult
(a) 2 Y. & C. C. C, 451.
(6) 1 PhilUps, 668.
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CHANCERY REPORTS. 197
of the' Master's constraction of the contract; and the same result I860.
J?oiSb.
would, I believe^ follow from the construction which I have put ^ , '
on the contract ; but I am not quite sure of this. It is, no doubt, ^
perfectly settled, as a general rule, that a pecuniary legatee is not a oordoit*
neoessary or proper party to a bill or petition for an account of the judgment
personal estate, it being the duty of the executors to protect the
estate against improper demands; but where, as in the present
case, the interest of the minor is adverse to that of three of the
executors (the petitioner and the two sons of the late Colonel Gor-
don, who are respondents, being executors of the 3vill), I apprehend
I should not fin|illy dispose of the case, without the minor being, in
some way, made a party to the proceedings : The Marquis of Hert-
ford V. Ziehi (a). I have, therefore, put a stay on the order. There
ought, under the circumstances, have been a guardian ad litem
appointed. . As to the best mode of obviating this objection, it
will be for Counsel to consider.
It turned out that there would not be assets to pay any part of
the legacy bequeathed to the minor, after providing for the peti-
tioner's claim ; and an order was accordingly agreed to by Counsel,
in accordance with the judgment of the Master of. the Rolls,
and the order of Master Litton was varied, and the funds were
distributed.
(o) 9 Bear. 11.
* Note. — Mr. Serjeant Launon haying been com olted, on behalf of the minor,
gave the following opinion: —
** I haye considered this case on behalf of the minor ; and I am of opi-
Dioo that the petitioner deariy has a demand against the assets of Colonel
Gordon, as a creditor, by Tirtne of the contract contained in the marriage settle-
ment of Bir. and Mrs. Buckett, and is entitled to haye that demand satisfied
oat of the assets, before any legalee be paid. As against the demand of the peti.
tioner, therefore, I think that the minor has no case. A pecnniaiy legatee has
no remedy if a creditor sweeps away the assets, which wonld otherwise be appli-
cable to pay his legacy. Kor can I see the least reason for donbthig that the
Mastse of the Rolls has come to a right oondnsion as to the nature and
extent of the petitioner's demand. Whether the minor will be entitled to receire
anything on foot of the £2000 legacy depends on the state of the assets. Now,
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CHANCERY REPORTS.
I860. looldng ftt the report, it appears that the general personal assets will be all re-
RoUs. qnired to make up the amount claimed by the petitioner. The £500 and £1000
mentioned in the will are specifically beqneathed, and the minor is not entitled to
be paid ont of them.
" If, after satisfying the demand of the petitioner, there were a residue, I
should be of opinion that two-thirds of snch residue wonld be applicable to pay
Judgment* the legacy to the minor, in preference to the daim of the sons as residoaiy
legatees ; for, I think that, thoagh the contract in the marriage settlement was
to give petitioner a child's share, there was no contract to give a like share to the
other two children ; for instance, if testator had, by his will, given Mr. Dnckett
a (nil third of all his property, and so performed the obligation, he might hare
disposed of the rest of his property as he thought fit If the marriage settlemspt
amounts to a contract to divide all his property equally amongst his children, as
in Jones v. Martin, even this opinion would be wrong ; but I do not think it can
be held that the father, by his contract, intended to fetter himself as to the mode
in which he might share his property with his other children. *
'* This is a point, however, which does not call for decision; there is no lesidae
to give rise to the question ; and I am, therefore, of opinion that no benefit can
accrue to the minor from, the legacy of £2000.
** Jambs A. Lawson.'*
'* 27th of November 1860,"
Ju9e 9.
Nov.e.
A deposit of
title-deeds, to
be delivered to
a solicitor, for
the purpose of
preparing a
legal mortgage
to secure an
antecedent
debt and fu-
ture advances,
though there
be no agree-
ment in writ-
ing for a mort-
gage, consti-
tutes a valid
equitable
mortgage.
BULFIN V. DUNNE.
This was a motion by way of appeal from a decretal order of
Master Murphy, of the 9th of May I860, by which he declared
that the deposit of a lease of the Portobello Hotel, on the 8th of
January 1859) constituted a valid equitable mortgage. The lease
was given to the petitioner, and delivered to his solicitor by Peter
Ryan, the lessee, for the purpose of preparing a deed of mortgage
of the property, to secure a debt due to the petitioner, and further
advances. A draft of the proposed mortgage was prepared and
given to Peter Ryan, for his approval; but he retained it; and
no mortgage was executed. No memorandum was given by Ryan
when he gave the lease. The premises, being leasehold, were sold
under 2k fieri facicuy and conveyed by the SherifiT to the respondent,
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DuDDe. The petition prayed m foreclosure and sale. The Master
to whom the matter had been referred, under the 15th section of
the Court of Chancery (Ireland) Regulation Act 1850, by the
order appealed from, ordered a sale, in pursuance of the prayer
of the petition. The particular facts of the case kre fully stated
in the judgment.
1860.
Rolls.
SiaUment,
Mr. Brewster^ Mr. F, W, Walsh and Mr. Hamill^ for the appeal.
The single proposition on which the Master's order is founded is,
that a person who delivers his original title-deeds to the solicitor for
the lender, for the purpose of preparing the legal mortgage, thereby
mortgages his property. There was no agreement in this case for
any particular mortgage. A debt was due; but there was no
arrangement as to the time when it was to be paid ; and, although
a mortgage, was contemplated, the terms of it had not been agreed
on. The only express authority to support the Master's order is Lord
Eldon's, in Ex parte Bruee (a) ; and that is a very short case. The
facts are not fully stated in the report of the case ; and it is opposed to
Lord Eldon's own opinion expressed in Ex parte Hooper (b) and
Ex parte Pearse and Protheroe (e). In Edge v. Worthington (if), the
question did not arise. • A legal mortgage had been executed ; and
there was no further advance to be made, tn Hockley v. Bantock (0),
in Keys y. Williams (f) and James v. Rice (^), there was an express
agreement for an equitable mortgage, independently of the delivery of
the title-deeds, for the purpose of preparing the legal mortgage. It is
that express agreement which constitutes the equitable mortgage;
and the deposit of the deeds is only evidence of the agreement :
Russel v. Russel (h). If the deposit of the deeds may be referred
to any other purpose — if they are not deposited expressly as a pledge
for securing a particular sum, there is no equitable mortgage: Bran*
den v. Boles (t) ; Norris v. Wilkinson (A) ; Brisiok v. Man-
Argument
(a) 1 Boae, 374.
(e) I Bnck, 525.
(e) I Robs. 144.
{g) 5 D., M. & G. 461.
(0 PWc in Ch. 875.
(6) 1 Mer. 7.
(d) 1 Ck)x, 211.
09 3 Y. & Col., Exch., 62.
(*) 1 Br. C. C. 269.
(A) 12 Yes. 192.
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Rolh.
^ ^ '
BULFIN
V.
Arguwient*
Nov. 6.
Judgment,
ners (a) ; Ex parte Bulteei (b) ; 5 Jarwum an Camvej^ncingj p. 1 i 3 ;
Spooner y. Weyman (c).
Mr. D, Sherlock and Mr. 2). C Berou, in support of the MaB-
ter's order, relied on Ex parte Bruce (<Q, and were stopped by the
Court.
The Master of the Rouls.
This 18 a foreclosnre petition, founded on an agreement for a
mortgage and deposit of a lease, in the petition mentioned. The
case having been referred to Master Murphy, under the 15<th section
of the statute, he made an order, which was signed on the 9th of
May 1 860, which order contained the following declaration : — '' It is
hereby decreed and declared that the agreement m the petition
mentioned, and the deposit of the lease, bearing date the 4th of
December 1856 (in the petition mentioned), upon the 8th day of
January 18599 constitute a vldid equitable mortgage for the sum
due and owing to the petitioner at the time of the agreement of
the 30tlL of December 1858, in the said petition mentioned, amount-
ing to the sum of £635. Is. 5d. ; and declare the same a charge upom
the said mortgaged premises accordingly." And then fc41ows a
declaratioa that the petitioner is entitled to the costs of the snit ;
and a sale of the PortobeUo Hotel (the property demised by the
said lease) is directed, in default of payment of the sum doe to
the petitioner. The notice of appeal seeks the rey^rsal of the
said order, and that the petition may be dismissed.
The facts appear to be as follow :-^By indenture of lease, bearing
date the 4th of December 1856, the Grand Canal Company .demised
to Peter Ryan, his executors, administrators and assigns, the pre«
mises known as the PortobeUo Hotd, for a term of ninety-nina years,
at the rentof £125. The leasewaa registered on the 27th of June 1857,
but no question turns on that. Peter Ryan entered into the posses-
sion of the premises, and carried on the business 9f an hotel-keeper
(a) 9 Mod. 284.
(c) 20 Bear. 607.
ifi) 9 Cox, 243.
(d) 1 Rose, 394.
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therein. The petitioner was and is a wholesale grocer ; and from the
time Peter Ryan commenced business in the hotel, the petitioner sap-
plied him with groceries, wines and spirits, and other shop goods, to a
large amount. In the month of December 1858, Peter Ryan was in-
debted to the petitioner in the sum of about £574, for goods sold and
'delivered by the petitioner to the Said Peter Ryan. Peter Ryan ap-
plied to the petitioner to accommodate him with a further advance
of money and goods, and the petitioner agreed to advance £229.
Os. 9d., which, together with the sum then doe, would make up
the sum of £800, on the terms proposed by Peter Ryan, that he
would grant his interest in the hotel and premises at Portobello, and
the furniture and fixtures therein, on mortgage to the petitioner.
The petitioner agreed to said proposal, on the 30th of December
1858; and the petitioner, on the faith of said agreement, did, on
that day, deliver goods to Peter Ryan, to the value of £24. 12s. 2d.
Peter Ryan, afterwards, about tbe 7th of January 1859> called on
the petitioner, upon the subject of the proposed loan, and stated that
the tenant's part of the original lease of the 4th of December 1856|
of the hotel premises, was then in the possession of' Messrs. Henry
Rooke and Sons, as the solicitors of the Grand Canal Company, the
lessors named in said lease, and who claimed a lien thereon for the
amount of £3. 178. 4d., for the costs of registering the lease. The
petitioner then handed to the said Peter Ryan the sum of £4, for the
purpose of paying the said costs, and getting up the tenant's part of
said lease, and then directed Peter Ryan to hand said lease to James
Patrick Madden, the petitioner's solicitor, in order to enable the said
James Patrick Madden to prepare the necessary mortgage, pursuant
to the said agreement. Peter Ryan paid the Company's solicitor the
said sam of £3. 178. 4d., and, having got the said lease from the
Company's solicitors, he handed it to the petitioner's solicitor, for the
purpose of preparing a mortgage of the said premises, both as secu-
ritj for the debt then due, and as a security for the future advances,
pursuant to said agreement with the petitioner ; and, at the same
time, Peter Ryan gave James Patrick Madden the necessary in-
formation, in order to have the deed of mortgage prepared. James
Patriek Madden wrote dow?^, in the presence of Peter Ryan, the
1860.
Rotts.
' . '
BUIiFIN
V,
DUNNE.
JudfffMtU,
VOL. 11.
26
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CHANCERY REPORTS.
1860.
RoUs.
Judgment.
heads of the mortgage, which were read over and approved of hj
said Peter Ryan. James Patrick Madden proceeded to draft the
mortgage, and, while same was being prepared, the petitioner, on
the 10th of January 1869, at the request of Peter Ryan, made a
further advance to him of the sum of £31, which sum of £31 was
part of the sum agreed to be advanced. James Patrick Madden
had prepared the draft of the mortgage on the 10th of January
1859i and it was then lying in his office, but a blank was left at the
end thereof for the schedule of furniture, Peter Ryan having under-
taken to furnish such schedule. Peter Ryan, on or about the said
10th day of January 1859, called at the office of James Patrick
Madden, and left with him a list of the furniture, which was to
compose the schedule at the end of the said indenture of mortgage.
On or about Tuesday the 41th of January 1859» Peter Ryan called
at the office of James Patrick Madden, who handed to Peter Ryan
the draft of the mortgage for his approval; Peter Ryan did not
object to the draft, but took it away, and never returned same either
to the petitioner or to James Patrick Madden-; but the said draft
was returned to the office of James Patrick Madden, on the 13th of
May 1859, by James Sinnott, the solicitor for John Dunne and
Patrick Beahan, trustees named in the marriage settlement of Peter
Ryan, which settlement bears date the 4th of July 1854. The said
John Dunne and Patrick Beahan, trustees of the said settlement,
having revived a judgment executed to them by Peter Ryan, at the
time of the execution of the marriage settlement, 9i. fieri fac%a$ was
issued thereon, on the 1 1th of January 1859» and the Sheriff of the city
of Dublin seized thereunder the said hotel premises and the furniture.
Cautionary notices were serv^ed, by the petitioner, on the Sheriff and
on John Dunne and Patrick Beahan, stating his claim as equitable
mortgagee* The sale by the Sheriff, under said writ, of the lease-
hold interest and term of years in said hotel premises at Portobello,
took place on the 10th of March 1859, and the said John Dunne
was declared the purchaser, for the sum of £40. An assignment of
«aid premises wsa executed by the Sheriff, and by said John Dunne.
The question is, whether there was a valid equitable mortgage
to the petitioner, of the Portobello Hotel ? If there was, the
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CHANCERY REPORTS.
203
«ale to the respondent John Dunne, under the jUri faeiaty ia 1860.
BolU.
subject to the equitable mortgage, of which he had full notice.
If there was no equitable mortgage, John Dunne, as purchaser
under the execution, is entitled to dismiss the petition. It was
decided by Lord Thurlow, in the case of Russel v. Russel{a\ also Judgmmu.
reported in 1 White Sf Tudoi^s Leading Cases^ that notwithstand-
ing the Statute of Frauds, a mere deposit of title-deeds by a debtor,
f<^ the purpose of securing a sum of money, although there was no
writing manifesting the purpose for which the deposit was made,
gave his creditor, in whose hands they were placed, an interest
in the land to which they related, so as to entitle him to file a
bill for a sale. That decision, although disapproved of, has been con-
stantly acted upon, and is regarded as a binding authority. Several
of the cases subsequent to Russel v. Russel are collected in Messrs.
White Sf Tudof^s note to that case. It is, however, contended,
on the part of the respondent, that the deposit in this case was
for the purpose of preparing a legal mortgage, and that in such
cases the deposit does not constitute a good equitable mortgage.
There is a conflict of authority on the question, whether a deposit
of title-deeds, for the purpose of preparing a legal mortgage, con-
stitutes a good equitable mortgage? The several cases on the
subject are collected by Messrs. White Sf Tudor^ in the note to
Russel V. RusseL With respect to the decision of Sir W. Grant,
in Norris v. Wilkinson^ the evidence, I think, clearly showed that
the deeds were not lodged to secure the debt. That case, there-
fore, does not affect the question. In the cases, however, of
Branden v. Boles (6), Ex parte Bulteel (c). Ex parte Hooper (d),
and Ex ' parte Pearse and Protheroe {e\ it has been decided
that where deeds are not deposited expressly as a pledge fot
securing a particular sum, but are delivered to a solicitor for the
purpose of enabling him to prepare a security to be thereafter
executed, the deposit does not constitute a good equitable mortgage.
On the other hand. Lord Eenyon, in Edge v. Wortkington (f)^
(a) 1 B. C. C. 260.
(c) 2 Cox. 243.
(e) 1 Back, 525«
(6) Prec. in Ch. 375.
(rf) 1 Mcr.7.
09 lCox,2lU
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204
CHANCERY REPORTS.
1860.
Rotts.
Judgment.
held that an agreement to give a legal mortgage, with a deposit
of the title-deeds, for the purpose of preparing the legal mort-
gage, constituted a valid equitable mortgage. Lord Eldon was
of the same opinion, in Ex parte Bruce {a), where he observed
that tlie principle of equitable mortgages was, that the deposit of the
deeds was evidence of the agreement ; but, if the^ were deposited for
the express purpose of preparing the security of a legal mortgage,
that was stronger than an implied intention. This case has been fol-
lowed by Lord Giffbrd, M. R., in Hockley v. Bantock (6). In Ke^ft
V. Williams (c), Lard Abinger, in giving judgment, said that, " If
it were necessary to decide the specific point, I should say that
an agteement to grant a mortgage for money already advanced,
and a deposit of deeds, for the purpose of preparing a mortgage,
is in itself an equitable mortgage by deposit ; but here the deposit
was evidently made as a present security, as well as with a view
of preparing a future mortgage." A sale was decreed in that
case, in default of payment. Lord Eldonf's opinions, in Ex parte
Hooper (cQ, 9JoA Ex parte Pearse and Protheroe{e)^ cannot be recon-
ciled with his decision in Ex parte Bruce; but^ it will be observed,
that neither the last-mentioned case, nor Edge v. Worihingtom^
were cited in those cases. Messrs. White Sf Tudor^ after referring
to the case, state that, " Upon the whole, taking into consideration
that Branden v. Boles, and Brisiek v. Manners^ Were<lecided before
JRussel V. Russely and that Edge v. Wortkis^ton was neither in
print, nor noticed, when Norris v. Wilkinson was argued before
Sir W. Grant, M. R., we may arrive at the conclusion that the
balance of authority is in favour of the proposition that a delivery
of deeds, for the purpose of preparing a legal mortgage^ constitutes
in fact a valid equitable mortgage."
I shall follow the decisions of Edge v. Wortkington, Ex parte
Bruce^ Hockley v. Bantock, and the opinion of Lord Abinger, in
Keys V. Williams, on the authority of which cases, I presume,
the Master decided. The motion must be refused, with costs.
(a) 1 Rose, 374. (6) 1 Bobs. 141.
(c) 3 Y. & p., Ex. Cas., 62. (d) I Mcr. 7.
(e) 1 Back, 527.
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CHANCERY REPORTS. 205
1860.
RoUs.
GRAY V. ROBINSON. ^186L^'
Jon. 2a
In Hilary Term 1844, Hugh Gray recovered a judgment in the A testator
bequeathed
Court of Queen's Bench against Meredith Thompson and Charles one-half of the
interest of a
Thompson, in the penal sum of £4400, conditioned to pay £2200 gam to A and
with interest at £5^ per cent. By his will, bearing date the other half to C
15th of August 1855, Hugh Gray bequeathed the sum secured ^^^ na^c^^
by the judgment, in the following terms: — "And as regards one the'*dMrthof
other bond passed to me by my nephews Meredith Thompson and ^» ^» 9"^^
Charles Thompson, on which judgments have been entered, I will queathed the
principal to 1&,
and bequeath one- half of the interest due thereon at the time of u^d he ap-
pointed resi-
my death, and thereafter to grow due thereon, to my said nephews duar^ legatees.
A died, and
Meredith and Charles Thompton ; and the other half of the said then B, leav-
ing C and D
interest I give and bequeath to my nephews Patrick Gray and soryiving.
John Gray during their natural life ; and, after the death of my ^*^» *hat
^ ^ » ' •'no part of the
said two nephews, then I bequeath said bond debt and the principal principal or
^ r r 5ntej^ert went
som thereby secured, to Hush Gray, son of my nephew John to E daring
■^ . * \ ' "^ the life of 0
Gray, and, if he die without lawful issue, then I give same to andD.
Hugh Gray's next brother; and I appoint my said wife that * the ex-
and Andrew Johnston, son of Doctor Johnston of Dromahare, my ?^*"* t^^th^'
residuary legatees." Meredith Thompson had died in September residuary lega-
' ° tees, was en-
1850. The testator, Hugh Gray, died on the 13th of February titled to the
interest of one-
1856, and Charles Thompson died in September 1856. The pre- half daring the
lives of C and
seat suit was brought for the administration of the assets of Hugh D.
Gray ; and a question arose before the Master as to the interest Statement,
on the moiety of the said judgment debt bequeathed to Charles and
Meredith Thompson, from the death of Charles Thompson until the
death of the survivor of the four nephews, when the entire principal >
was bequeathed to Hugh Gray. The Master, by his order, which
is stated at length in his Honor's judgment, decided that the residu-
ary legatees were entitled to the interest during that period. Cecilia
Thompson, the personal representative of Charles Thompson, moved,
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206
CHANCERY REPORTS.
1860.
RolU.
GBAT
9.
BOBinSON.
Stateiment.
by way of appeal from the Master's order, that it might be varied,
by declaring her entitled to a moiety of the interest of the judgment
debt which should accrue during the lives of Patrick Gray and John
Gray, and the interest due since the death of Charles Thompson.
A notice of appeal was also served on behalf of Hugh Gray
and John Gray junior, the sons of John Gray, claiming a moiety
of the judgment debt, and interest on such moiety from the death
of the said Charles Thompson.
Argument. Mr. BrewHer and Mr. Incej for Cecilia Thompson, argued that
there was a complete gift of the principal and interest, and that no
intestacy as to any portion of it was contemplated by the testator.
There was no gift by implication of the interest of the Thompsons'
moiety to John Gray or Hugh Gray. The true construction of the
will was, that the interest of that moiety was bequeathed indefinitely,
or during the lives of the four nephews of the testator, and the life of
the survivor of them. They cited Jonei v. Randall (a) ; Townhf
V. Bolton (6) ; Pearce v. Edmeades (c) ; Bignold v. Giles {d).
Mr. J. M^Mahon^ for John Gray jun. and Hugh Gray, argued that
the will should be construed distributively to bequeath the sum to
the Thompsons, and, on the death of the survivor of them, that
moiety, with principal and interest, was to go over: Kay v.
Kay (e) ; Drew v. Kellick (f) ; Willie v. Douglas (g) ; Lainson v.
Lainson (h) ; Swan v. Holmes (t).
Mr. ChaHerton and Mr. Levinge^ in support of the order, cited
Swan V. Holmes (k) ; Bignold v. Giles (/) ; LiU ▼. Lill (m) ;
M^Dermot v. Wallace (n) ; Windham v. Windham (o) ; Heath v.
Perry (jpi).
(a) Jac. & W. 100. (A) I M. & E. 148.
(c) 3 Y. A C, B. C, 246. (d) 4 Dr. 843.
(e) 4 De G., M. & G. 73. (jQ 1 De G. ft Sm. 266.
(g) 10 Beav. 47. (h) 5 De G., M. & G. 574.
(0 19 Beav. 471. (A) 19 Beav. 476.
(0 Uin supra. (m) 23 Bear. 446.
(n) 5 Beav, 142. (o) 3 B. C. C. 57.
(p) 3 Atk. 101/
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CHANCERY REPORTS. . 207
The Masteb of thb Rolls. 1861.
BolU.
A motion has been made in this case, on behalf of Cecilia Thomp- ' , '
QRAY
SOD, by way of appeal from the order of J. J. Murphy, Esq., the Mas- ^^
ter in this matter, bearing date the 4th of February, and filed the 26th bobinsow.
of June 1860. The notice of motion seeks that the said order may jan, 28.
be set aside or varied, so far as it declares that Andrew C Johnston, " y™«»*«
the residuary legatee in the will of Hugh Gray, is, during the lives
of the petitioners, Patrick Gray and John Gray the elder, and the
life of the survivor of them, entitled to a moiety of the interest on
the judgment in the petition mentioned, obtained by the testator,
Hugh Gray, against Meredith Thompson and Charles Thompson,
and the arrears of the moiety of the interest which accrued on the
said judgment, since the death of Charles Thompson ; and the said
notice seelcs that it should be declared that the said Cecilia Thomp-
son, as personal representative of the said Charles Thompson, is,
according to the true construction of the said will, entitled, daring
the lives of the said Patrick Gray and John Gray the elder, and
the life of the survivor of them, to the said moiety of the interest to
accrue on the said judgment debt, and the arrears of said moiety
which have accrued since the death of the said Charles Thompson.
Another notice of motion, by way of appeal from the said order, has
been served on the part of the minor petitioners, Hugh Gray and
John Gray the younger, seeking to set aside the declaration in the
Master^s order, which I have already stated, and that, in lieu of said
declaration, it may be declared that the petitioner Hugh Gray,
upon the death of the said Charles Thompson, became absolutely
entitled in possession, with an executory devise over to his brother,
the petitioner John Gray the younger, in the event of the said
Hugh Gray dying l¥ithout issue, to the moiety of the judgment
debt, together with the interest on the said moiety of the said judg-
ment, which accrued since the death of the said Charles Thompson.
It appears to me that this latter notice is untenable, for th^ reasons
I shall hereinafter state. The question in the case, therefore, is,
whether the motion of Cecilia Thompson is well founded ? and that
depends on the construction to be put on the will of Hugh Gray,
deceased, which bears date the 15th of August 1855.
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208
CHANCERY REPORTS.
1861.
Rolls.
The Master's order declares that Hugh Graj, the testator, was
in his lifetime^ and at the time of his decease, entitled, amongst
OSA.T '
^^ Other personal property, to a certain judgment obtained bj the
ROBINSON, said testator Hugh Gray, against one Meredith Thompson and
Judgment, ^°® Charles Thompson, in the Court of Queen's Bench, in
Hilary Term 1844, in the penalty of £4400, conditioned to pay
£2200, with interest at £5^ per cent, per annum. The order
further declares, that the testator Hugh Gray died on the Idth
of February 1856, and that probate of his will was granted to the
respondents, Roger D. Robinson and the Rev. John Hamilton.
That Meredith Thompson, in the will named, died in September
1850, in the testator's lifetime, and Charles Thompson died in
September 1856, after the death of the testator; and the order then
declares that, in the said events, and according to the true construe*
tion of the said will, the petitioners Patrick Gray and John Gray,
the two nephews of the testator, are, under and by virtue of the
bequest in the said will, " entitled, during their natural lives, to a
moiety of the interest due, and to accrue due, on foot of the
said judgment debt for £2200 ; and that, after the death of the
said Patrick Gray and John Gray, the said Hugh Gray, son
of the said John Gray, or, in the event of the said Hugh Gray
dying without leaving lawful issue at the time of his death, his next
brother, the petitioner John Gray, will be absolutely entitled to the
said judgment debt, and the principal sum of £2200 thereby secured;
and it was, by the said order, further adjudged and declared that
Cecilia Thompson, the personal representative of the said Charles
Thompson, is entitled to a moiety of the arrear of interest upon
said judgment due at the time of the death of the said testator Hugh
Gray ; and also to a moiety of the said interest which accrued due
from the death of the said testator Hugh Gray, up to the time of
the death of the said Charles Thompson ; and it is thereby fur-
ther declared, that Andrew C. Johnston, the residuary legatee of
said testator, is, during the natural lives of the petitioners Patrick
Gray and .John Gray, and of the survivor of them, entitled to the
said moiety of the interest to accrue on the said judgment debt,
and to the arrears of the moiety of the interest which have accrued
due since the death of the said Charles Thompson. The testator,
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CHANCERY REPORTS.
209
Hagh Graj, deceased, bj his will, bequeathed a certain bond therein
mentioned, to his wife ; and no question arises upon that bequest.
The clause on which the question arises is as follows : — " And as
regards one other bond, passed to me by my nephews Meredith
Thompson and Charles Thompson, on which judgments have been
entered, I will and bequeath one-half of the interest due thereon, at
the time of my death, and thereafter to grow due thereon, to my
said nephews Meredith Thompson and Charles Thompson ; and the
other half of the said interest I bequeath to my nephews Patrick
Gray and John Gray, during their natural life ;* and after the death
of my said four nephews, then I bequeath said bond debt, and the
principal sum thereby secured, to Hugh Gray, son of my nephew
John Gray ; and if he die without lawful issue, then I give same
to Hugh Gray's next brother." After several other devises and
bequests, there is the following devise : — '* And I appoint my said
wife and Andrew Johnston, son of Doctor Johnston, formerly of
Dromahare, my residuary legatees.''
It has not been stated, during the argument, whether the testa-
tor's wife is dead ; but I presume, from the declaration in the Mas-
ter's order in favour of Andrew Johnston, in the order called
Andrew C. Johnston, that the testator's wife died in his lifetime ;
and no question has been raised or argued as to whether, if the
residuary legatees are entitled, that Andrew C. Johnston, one of such
residuary legatees, is, under the events which have happened, enti-
tled. It is not necessary, from the view I take of the case, to inquire
into the facts, or decide that question. With respect to the notice of
appeal served on the part of the minors, Hugh Gray and John Gray
the younger, it is, in my opinion, unsustainable, as the bequest of
the principal of the bond and judgment to Hugh Gray, and, if he
should die without lawful issue, to his next brother, the said John
Gray the younger, was to take effect after the death of the testator's
four nephews, in the will named — and two of the said nephews are
still living — and it is clear that if the will is to be construed accord-
ing to its plain language, that bequest has not taken effect, either in
1861.
RolU.
«_ ^^ -*
GRAY
V.
ROBINSON.
Judgment.
Sic.
vol*. 11.
27
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Judgment.
210 CHANCERY REPORTS.
1861. the whole or in part. That motion will be, therefore, refused with
RoOs. •
V— ->, — ^ costs.
^*^^ The testator's nephews Patrick Gray and John Gray the elder do
ROBINSON, npt allege that they are entitled by implication to the half of the in- .
terest on the said judgment bequeathed to Meredith Thompson and
Charles Thompson, both of whom are dead, Meredith Thompson
having died in the testator's lifetime, and Charles Thompson having
survived the testator ; and, therefore, the question is, whether the
said half of the interest on the said judgment, bequeathed to Mere-
dith Thompson and Charles Thompson, deceased, is now payable to
the appellant Cecilia Thompson, as the personal representative of
Charles Thompson, during the lifetime of Patrick Gray and John
Gray the elder, the other nephews of the testator? or whether the
saie half of the interest is to be considered as having lapsed ? and
whether same is payable, as the Master has decided, to the residuary
legatee, during the lifetime of Patrick Gray and John Gray the
elder ?
There are only three constructions of which the clause in ques-
tion is capable ; and in considering what is the true construction
with respect to the interest on the judgment, and to whom payable,
it is perfectly clear, in my opinion, that the principal was not payable
under the clause bequeathing the principal, until the death of all
the four nephews of the testator, viz., Meredith Thompson, Charles
Thompson, Patrick Gray and John Gray. There can be but little
doubt that the testator intended to dispose of the entire interest on
the judgment until the principal became payable ; and that when he
bequeathed half of the interest to two of his nephews, and the other
half of the interest to the other two nephews, he intended to dispose
of the whole interest until the principal was payable, and did not
intend, as the Master has held, that there should be an intestacy as
to half of the interest. It is admitted, by all the Counsel,.that there
was no bequest by implication, to Patrick and John Gray, of the
interest bequeathed to the Thompsons, who are dead ; and Patrick
and John Gray make no claim ; and if they have no claim, the
question is, what is the effect of the clause? Patrick and John
Gray making no claim, there are only three possible constructions
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CHANCERY REPORTS. 211
tQ be pot on the daiise. The clause in question, leaving out what 1861-
does not affect the construction, is in these words : — " I give and
bequeath one-half of the interest due and to grow due on the ^^
judgment, to my nephews Meredith Thompson and Charles Thomp- bobxhsoii.
son ; and the other half of the said interest I give and bequeath to judymetu,
mj nephews Patrick Gray and John Gray, ' during their natural
life.'"
The Master has decided that the words '' during their natural
life ** are to be inserted by construction after the bequest to the
Thompsons, as well as after the bequest to the Gi^ys ; and that
you are to read the bequest of the one-half of the interest to the
Thompsons as a bequest of the said one-half of the interest to them
'* during their natural life ; " and that, as they are both dead, the
residuary legatee must be entitled until the principal of the judg-
ment is payable, t. e., until the death of the remaining nephews of
the testator, Patrick and John Ghray. The objection to that con-
struction is, that it requires the insertion of words in the clause
contrary to the principle of construction decided in the House of
Lords, in Gray v. Pears&n (a).
The next construction which may be put on the clause (which is
one of those relied on by the appellant) is, that if you do not insert
the words "during their natural life," which the Master has, by
construction, inserted after the bequest to the Thompsons, there was
an indefinite bequest of the one-half of the interest on the judgmeqt
to them, until the principal of the jud^ent was payable, t. e., until
the death of Patrick and John Gray; and in such case it is said, on
the authority of Bignold v. GiUt (6), that the one-half of the said
interest bequeathed to the Thompsons is payable to Cecilia Thomp-
s<m, as the personal representative of Charies Thompson, who sur-
vived Meredith Thompson, during the lires of Patrick and John
Gray.
The third construction which the clause is capable of, and which
has been also relied on by the appellant's Counsel, is, that the words
at the end of the clause in question, " during their natural life,"
which, of course, means " during their natural lives " (the sense in
(a) 6 H. of L. Caa. 61. (*) 4'Drew. 343.
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212 CHANCERY REPORTS.
1861. which the words are obviously used in another part of the will),
v^-v^-^ override the whole of the clause ; and that those words, according
to their grammatical and natural construction, are to be read '^ during
ROBINSON, the natural lives of the said Meredith Thompson, Charles Thomp-
Judgment, ^^ Patrick Gray and John Gray ; " and if so, that the effect of the
clause is to bequeath one-half of the interest to Meredith Thompson
and Charles Thompson, daring their lives and the lives of Patrick
Gray and John Gray ; and the other one-half of the interest to
Patrick Gray and John Gray, daring their lives, and daring the
lives of Meredith Thompson and Charles Thompson. The effect
of that construction, which appears to be the most natural construc-
tion of the language of the clause, is, that the whole of the interest
of the judgment was disposed of until the principal of the judgment
became payable under the bequest of such principal ; and it is not
at all probable, having regard to the grammatical construction of
the clause, that the testator intended to leave a portion of the inter-
est undisposed of before the principal was payable. If thia be the
true construction of the clause, which I think it is, Cecilia Thomp-
son is entitled to the interest which she claims. If the construction
which I have secondly stated be the true construction, she is
equally entitled*.
I have not beea able, after a careful consideration of the will, to
come to the conclusion which the Master has, that you are to insert
the words *' during their natural life," after the bequest to the
Thompsons, which leads to an intestacy as to part of the interest ;
and, unless you insert those words, the Master was mistaken. I
think the best way is to insert no words, but to construe the
words as they stand in the will ; and if that coarse be adopted, in
accordance with the principle laid down in Grd^ v. Pearson^ the
construction to be put on the clause is that either secondly or thirdly
before stated ; and in either case the appellant is entitled. I shall
delare her rights accordingly.
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CHANCERY REPORTS. 213
1860.
RolU,
WATSON V. FITZPATRICK.
BROWNE V. FITZPATRICK.
BROWNE V. COOTE.
Nov. 20.
This was a motion bj way of appeal from an order of Master Ljle, Whero there
made in these matters. The order and the nature of the suits, brances prior
80 far as they are material, are faUy stated in his Honor's judgment tionor'ha^ng
The question on the motion was shortly as follows : — Certain lands of^tS^^Tis
were sold in the second matter. Mary Browne, the petitioner in ^^^ ^ ^
that matter, and Elizabeth Watson, who was a respondent in that ^^ ^P Pi^
' *^ dnce of real
matter, and petitioner in the first matter, were salvage creditors ^te, in the
"^ " 7 -Ts g^ instance,
in equal priority. The Master, in allocating the funds, directed and in priori^
to the demands
the costs of Mary Browne to be paid in the first instance, and and the costs
._ ,,..,, ;« « *, »* , of creditors in
the residue to be divided rateably between Mary Browne and eanal priority
Elizabeth Watson. '"*VT'
Oonium(lJ>c.
and W.) ob-
Mr. P. W. Walihy on behalf of Elizabeth Watson, moved that the served on.
Master's order be varied ; and that, in lieu thereof, the sum due Argumau.
to Mary Browne for principal, interest and costs, and the sum due
to Elizabeth Watson for principal, interest and costs, should be
paid rateably. He contended that the petitioner was only entitled
to his costs according to his priority, on the authority of Taylor v.
Ocrman (a) ; Nelson v. Brady (b) ; Oray v. Crawford (e) ; Smyth
▼. Murphy (d),
Mr. D. Sherlock and Mr. Beyiagh^ in support of the Master's
(a) 1 Dr. & W. 235 a.
(6) 2 Dr. & War. 143; S. C, 4 Jr. £q. Bep. 369.
(c) 1 Jr. £q. Bep. 276. (<0 10 Ir. Chan. Bep. 42.
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214 CHANCBBY B£PQBTS.
1860. order, cited Wright v. Keify (a) ; Wedgwood v. Adamt (b) ; Keify
.J^ y.Kellgic).
WATSON
V.
FiTzpATtacK. ^j^^ Master of the Rolls.
Judgment. xhe petition in the second matter, of Browne v. Piizpairiek and
oihersy was filed to raise the amount of a salvage claim due to the
said petitioner in respect of money advanced by the petitioner
to preserve from eviction the interest in certain houses in Lower
Mount-street The petition was referred to A. Lyle, Esq., the
Master in the cause, under the 15th section of the stat^te. The
petitions in the other matters were also referred to the Master,
under the same section. By a decretal order made in the second
matter of Browne v. FUzpatrick and othert^ by the Master, dated
the 31st of December 1856, it was declared that there was a sum^f
£105. 12s. due to said petitioner, in respect of such salvage advances,
and that said sum and interest were well charged on the estate
of the respondents John Henry Fitzpatrick and Maria O'Farrell
in the said houses ; and it was thereby further ordered, that the
said sum and interest should be paid to the said petitioner within
three months, or, in default thereof, that the interest of the said
respondents in the said houses should be sold for the payment
of the petitioner's demand, and the costs of the suit, and the
demands of any other incumbrancers as should come in and prove
their demands; and the said petitioner was directed to insert
advertisements for all parties having charges or incumbrances
to come in and prove their demands. The said houses were
sold^ and Elizabeth Watson, the petitioner in the first matter,
and one of the respondents in the second matter, having proved
a demand in the second matter, of Browne v. FUzpfUriek and
others^ in respect of a sum paid for the redemption of the said
houses, the Master, by an order made in the said second matter,
dated the 31st of October 1869, declared that the said Elizabeth
Watson was entitled to the sum of £215. 5s. Id., in respect of
the sum so paid for redemption ; and said sum was, by the
(a) 23 Beay. 463. (6) 8 Beav. 103.
(c) 1 Ir. £q. Bep. 317.
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CHANCERY EEPOETS. 215
said order, declared a charge on the said houses and premises, 1860.
JtolU.
together with interest ; and she was also declared entitled to the ^« y '
WATSON
costs of the cause petition wherein she, the said Elizabeth Watson, v.
was petitioner, and the said John Henry Fitzpatrick and others
were respondents, '' along with her said demand ;'* and Elizabeth *'*''^"'^ •
Watson was directed by the said order to make it up at her own
expense; and that the petitioner Mary Browne should have her
costs of opponng the charge of Elizabeth Watson, as costs in the
matter. An order was made, entitled in the first matter, of EUza-
betk WaUan v. John Henry FUzpatriek and others^ and in the
said second matter, and in a certain sitipplemental matter of Browne
V. Coote and others^ bearing date the 18th of April 1860, whereby,
after directing the Accoontant^Greneral, out of a sum of £500
standing to the credit of the second and third matters, to draw
in favour of one Denis Hartley for £134. 4s. 6d. (upon which part
of the order no question arises) ; and it was further ordered that the
Aocountant-General should, out of the sum of £365. 158. 6d. (the
residue of the said sum of £500), draw on the Bank of Ireland,
in favour of the solicitor for the petitioner Mary Browne, for £232.
17s. Ud. for the taxed costs of Mary Browne in the three matters,
and for the sunr of £69* 10s. 4d., the certified post costs of the
Bsdd petitioner Mary Browne, said sums making together £802.
8s. 3d. ; and it ^as further ordered, that the Accountant-Grenend
should draw on the Bank of Ireland for the sum of £63. 7s. 3d.
(being the residue of the said sum of £500), in favour of the said
Mary Browne and Elizabeth Watson, rateably In proportion to
the respective amounts of principal and interest due to the peti-
ti<mer Mary Browne, and principal, interest and costs due to the
petitioner Elizabeth Watson; that is to say, in favour of Mary
Browne for the sum of £19* Os. 7d., and in favour of the petitioner
Elizabeth Watson for the sum of £44. 6s. 8d. The Master has
not expressly found the priorities of the said Mary Browne and
the said Elizabeth Watson; but it appears, from the latter part
of the said order of the 18th of April 1860, that it was assumed they
Atood in equal priority, as the residue, after payment of the costs
in the said order mentioned, was to be paid proportionally between
them. I inquired from Counsel on what ground the Master held
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216 CHANCERY EEPOETS.
I860. that the two demands stood in equal priority ; and I was informed
RoUm.
< , — ^ that, in consequence of some facts and letters not brought under
WATSON
«. my notice, it was agreed between Counsel on each side that the
YITZPATBICK*
demands should be taken to be in equal priority. The question,
^^^* therefore, is, whether, as the two incumbrances are to be considered
as of equal priority, the Master was right in holding that Mary
Browne, who had the carriage of the proceedings, is entitled to have
her costs paid out of the fund in the first instance ? It is the settled
practice of the Court, that a plaintiff or petitioner in a suit for the
sale of real estate only gets the costs of the suit in the same priority
with his demand, except such costs as have been incurred for the
benefit of the parties in the cause, such, for example, as the
making out of title to real estate to be sold: Peyton v. M^Der-
moii (a) ; Nelton v. Brady (&)• I have inspected the Registrar's
book in Taylor v. Gorman^ and I do not think that that case is
correctly reported. I have not been referred to any case in which
the question hab arisen as to the costs of the suit, where the plain-
tiff orpetitioner stands in equal priority with another incumbrancer.
The rule established in Peyton v. 3PDermoit and Nelson v. Brady
was, I apprehend, adopted to prevent the very objectionable practice
of filing bills on the part of a puisne incumbrancer, for the sole
purpose of realising costs. The principle of allowing a petitioner
under the Sheriffs Act, who was a puisne incumbrancer, to be
paid his costs, in the first instance, out of the rents received, worked
so badly, it being the practice for Irish usurers, whose* names
are so well known in this Court, to purchase up, at a very trifling
sum, puisne judgments, which it was known the funds would never
reach, for the sole purpose of realising costs, that the Legislature
interfered, the matter having been, with other notorious abuses
of the Court of Chancery in Ireland then existing, brought under
the notice of a Committee of the House of Commons. I believe
that the object of establishing the rule of practice in causes,
as it is laid down in Peyton v. M'Dermott and Nelson v.
Brady, and other cases, was to prevent the great abuse conse*
quent on allowing a plaintiff to have his costs in the first instance,
(a) 1 Br. ft Wal. 234. (6) 2 Dr. ft War. 143.
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although he knew the funds could not reach him. That prin- I860.
RolU.
ciple, however, is not applicable where two incumbrancers stand ^- — .^— ^
WATBOM
in equal priority, and one of them files a bill, or a cause petition, v.
FITSPATBXOK.
for the sale of the real estate, the produce of which is to be
applied to pay the demands of both incumbrancers. In the absence Judgment.
of any decision on the subject, I should not feel justified in revers-
ing Master Lyle's decision on a doubtful question. There being no
rule of practice on the subject, I apprehend the Master was entitled to
exercise his discretion as to the costs ; and, if he h^d any discretion,
the appellant has no right to appeal from a decision as to costs.
In the absence of any established practice in the Court of Chancery,
as to the priority of the costs of the suit, where a plaintiff or peti-
tioner in a suit for the sale of real estate, or for the appointment
of a receiver, stands in equal priority with another incumbrancer, I
thought it right to apply to Mr. Carey, Secretary of the Landed
Estates Court, as to the practice in that Court ; and he has been so
good as to send me the following statement in writing: — ^''The
practice observed by the Judges of the Latided Estates Court, with
reference to the costs of proceedings, is, to allow such costs in the
tame priority as the petitioner's demand, except in cases where,
under the circumstances, the Judge makes an order specially de-
claring the petitioner entitled to his costs in any earlier priority.
In cases of incumbrances of equal priority, the Court would allow
the costs of the petitioner (being one of such incumbrancers), in
IMiority to both. I have mentioned the subject to Judge Longfield,
and he says that he recollects having had occasion to consider the
question; and he found that the above course was consistent with
the terms of some Chancery decrees; but he ornnot now parti-
eularly refer to them.**
I am not aware of the Chancery decrees referred to by Judge
Longfield ; but I concur in the view adopted by the Landed Estatea
Court and by Master Lyle ; and, at all events, I do not feel justified
in reversing Master Lyle's order on a question of costs, unless there
was a clear rule of practice at variance with his decision. I am,
therefore, of opinion that the motion must be refused, but without
costs. A question might, perhaps, have been raised, upon which
VOL. 11. 28
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218 CHANCERY REPORTS.
1860. I offer no opinicHi, as it has not been argued, that Elizabeth Watson
JRoUs,
y. — . ' should (as well as Mary Browne) have been paid her costs out of the
p. fund before the balance was rateablj distributed.
rZTZPATKICK.
Judgmmt.
i^«y30. GRAY V. GRAY.
June 2.
Abo. 3.
A testator be- This was a suit for the administration of the estate of John Gray*
qneathedtohis ^
two sons all The principal question in the case was, whether a trust was created
real and '^r- ^7 ^^^ "^^y ^^ favour of his children, and which of them? Master
i^d to hold the ^i^>o^^ ^ whom the matter was referred, under the 15th section of
SSt ^ute ^® ^^^^ ^^ Chancery (Ireland) Regulation Act 1860, by his
P^^^l^^^^. decretal order, declared that, having regard to the statements in
to be his will the petition respecting the testator's intention, and to the expres-
ihat his sons sions in the will, a trust had been created in favour of the child-
should, at their
discretion, and ren other than the two sons, the devisees. The petitioner, one
according to
their own of the sons, appealed from that- declaration.
Jadgmenty
allocate to the
of Ids^^i^ily, ^^* Brewster and Mr. Latalets, for the petitioner, contended that
^U^lwottS ^^ *""* ^^ created by the will. The direction of the testator was
^OTd^ f^ neither imperative nor precatory : Wood v. Cox (a) ; the subject
Mid F^®^ of the alleged trust was uncertain, and the objects of it were unoer*
the same more tain: WiUianu v. Williams (b) ; Webb v. Wools (e) ; Knioht v.
or ^fff^, as to
them shoold Knight (d) -, Wheeler v. Smith (e) ; Biggs v. Ward (f) ; Meredith
•eem fit and
soitable; and ▼• Heneage(g); SugdefCs Law of Property ^ p. 389; Pinekard^s
he appointed
his said sons
his ezecotora. — HeJd^ coupling the will with an admission in the petition by the
aons, of the testator's intention, that a trost had been created, and that the sons were
trostees for the other children of the testator as to the entire property of the testator,
both real and peiKmaL
Ca) 2 M. & C. 648. (6) 1 Sim., N. 8., S5S.
(e) 2 Sim., N. S., 267. (<0 3 Beay. 14a
(«) 6 Jar., N. S., 62. (fj I Hare, 445.
(S) 1 Sim. 556.
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Trust (a) ; M^Auley y. Clarendon {b). The trust was at most a par-
tial one, as to such sum as the sons, in their discretion, should choose,
and as to the residue the sons were beneficially interested : Wood v.
Cox (e) ; Dawson v. Clarke (d),
Mr. W, Bourke and Mr. FP. R, C Smithy for one of the daugh-
ters of the testator, contended that there was a trust on the face
of the will itself ; but if the trust did not sufficiently appear on the
face of the will itself, it was plain, by coupling it with the state-
ment in the petition, by which it appeared that the sons were to
hold on a secret trust : Russell y, Jackson (e) ; Briggs v. Penny (f) ;
Walgrave v. Tebbs {g) ; Bernard v. MinshtUl (h).
Mr. Lloyd and Mr. Coffey^ for Moses Wilson Gray, one of the
trustees, declined to take any part of the property to himself^ or to
take any part in the discussion, as he considered that his father
intended to create a trust.
Mr. G, O. Malley^ for Alexander Gray, another son.
1860.
RolU.
y — -, »
GRAY
V.
OBAT.
ArgvmeiU.
The Mastbb of the Rolls.
In this case a motion has been made, on the part of the petitioner
John Gray, by way of appeal from the decretal order of William
Brooke, Esq., the Master in this matter, signed the 27th of April
I860. The appeal is from the portion of the decretal order which
is in these words :^—*' Having regard to the statements in the peti-
tion in this matter set forth, respecting the said testator's intentions,
and also to the expressions of the will itself, declare that a trust
has been created, of which the trustees are the said petitioner John
Gray and his brother Moses Wilson Gray, and the objects of the
trusts are the other children of the said testator, and the subject-
(a) 4Jiir.,K.S., 1041.
(c) 2M.&Cr.684.
(e) 10 Hare, 204.
(p) 2 Jar., N. 8., 83.
(6) 8 It. Chan. Bep. 121, 568.
(d) 18Veg.254.
r/)3M»N.&G,54a
(A) I JohBft. 276.
Nov. 9,
Judgment.
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220 CHANCERY REPORTS-
I860. matter the entire property of the said testator, both real and per-
Roth.
sonal.
It is sought, by the notice of motion, to set aside such declaration,
** and that it may be declared that the petitioner and the respondent
j^jTjJj^^ Moses Wilson Gray take the properties devised to them by the
testator's will, unaffected by any trust, but with an absolute discre-
tion and power in them to make such provision for the testator's
children as they should think proper ; or, if the Court shall be of
opinion that a trust was created, that it may be declared that all the
children of the testator, including the petitioner and the respondent
Moses Wilson Gray, are entitled to the benefit thereof; and that the
said order may be reversed and varied accordingly."
The will of the testator is short, and is in these words : — '* I, John
Gray, of Claremorris, in the county of Mayo, being infirm of body,
but of sound mind and judgment, do hereby will and bequeath unto
my sons, Meses Wilson Gray, Esq., Barrister-at-law, and John
Gray, Esq., M.D., of Dublin, all the property, real, personal or
otherwise, and all the stock and furniture, and every the goods and
chattels, of whatever nature and kind soever, of which I may be
seised and possessed at the time of my decease, to have and to hold
the same in the most absolute manner ; and I further will and hereby
declare it to be my intention that the said Moses Wilson Gray and
John Gray shall, at their discretion and according to their own
judgment, allocate to the other members of my family, being my
lawfully begotten children, such portions of the said property and
goods, be the same more or less, as to them the said Moses Wilson
Gray and John Gray shall seem fit and suitable; and I hereby
appoint and nominate the said Moses Wilson Gray and the said
John Gray as my executors; and I hereby make and publish this
as my last will and testament, affixing thereto my hand and seal,
the 27th of July 1652." The will was duly signed and attested,
and probate thereof was granted to the petitioner John Gray, saving
the right of -the other executor, Moses Wilson Gray. The testator
died in 1866, and the petitioner took the opinion of Mr. Deasy,
now the Atiomey''General^ shortly after, and the respondent
took the opinion of Mr. Brewster in 1859. The opinion of
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those gentlemen was unfavonrable to the petitioner, although they
considered the question as one of great difficulty. I should be very
slow to come to a conclusion at variance with the concurrent opinions
of the Master, the AUomey^ General and Mr. Brewster ; but I must
say that I concur substantially in their opinion.
The petitioner, in the petition, states, '* That immediately after
the interment of the testator, the petitioner caused his solicitor to
prepare a case, to lay same before Counsel, for his advice and
directions respecting said will and affairs ; and said case, to which,
to avoid prolixity, petitioner begs leave to refer, stated as accurately
and fully as petitioner's knowledge of said affairs enabled him to
instruct said solicitor, all the facts and circumstances connected
therewith, with which he was acquainted ; and also his views as to
the manner and mode in which the trusts of said will should be
executed, according to what petitioner understood and believed to
be the wishes and intentions of the testator, more espeoiaUy with
respect to testator's son George Gray." The petitioner, at the time
of verifying the petition, indorsed the case and opinion, which was,
in effect, by reference incorporated therewith; and the petition
prays, amongst other things, that the *' trusts of the will may be
carried into execution."
The ease referred to by the petitioner in the petition, and incor-
porated by reference therewith, states, amongst other things, that,
^'In the month of July 1852, the testator was seized, and for some
time confined, by a serious and an alarming illness. During this
illness, and at a period when he was considered to be on the verge
of death, he was visited by one of his sons. Dr. Gray, of Dublin
(the petitioner), to whom he expressed his concern at not having,
up to that time, made any will or settlement of his affairs. After
some conversation on the subject, and speaking at once fully but
generally as to how he would wish his property to be distributed
amongst bis children, he directed Dr. Gray to draw his will, devis-
ing and bequeathing all his property, of every kind whatsoever, to
Mr. Wilson Gray (another of his sons), and Dr. Gray. It so hap-
pened that Mr. Wilson Gray, in whom testator placed great confi-
dence, was not, at the time, in Claremorris, or within reach of being
1860.
RoJh,
Judgment*
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222
CHANCERY REPORTS.
1860.
Rolis.
^ V '
ORAT
r.
ORAT.
Judgment*
consulted ; but he afterwards became fully acquainted with same,
and it is believed was the custodee of it for some time. This
devise he, testator, wished and directed to be absolute in its terms,
so as to vest in Mr. Wilson Gray and Dr. Gray uncontrollable dis-
cretion in the disposition and distribution of his property, trusting,
however, to their probity, that they would dispose of it in consonance
with what they knew to be his views and wishes in that respect.
These views and these wishes he not only then, but after his
recovery from that illness, expressed, and they may be thus con-
veyed:— And, first, as to the female portion of his family. He
considered, as indeed the fact was, that he had more than provided
for his daughter Mrs. Margaret M'Cullagh, and that his other two
daughters should get about £500 each, which contemplated, in the
case of his daughter Mrs. Rutledge, a sum of £200 in addition to
the £300 given to her on her marriage. As to his sons, he intended
that there should be Secured for his eldest son George a life provi-
sion, to be so guarded as to deprive him of all power of either
disposing of it or incumbering it — a restriction absolutely necessary
for the protection of the said George, who is of such character and
habits as to render some such restriction necessary for his own per-
sonal security. He was also understood to desire that the two sons
in America, and his son Joseph, should get about £200 a-piece ; but
it is to be observed that this last-named son, being rather of a wild
and improvident turn, the testator was very anxious that great
caution and circumspection should be used in his instance. In truth*
it was perplexity as to how his wildness, and the weakness of
Greorge, could be dealt with, that had prevented the testator from
settling the details of his a£fairs, and that induced him to prefer the
mode of placing the matter within the power, and, in the hands, of
his two sons Mr. Wilson Gray and petitioner, in both of whom he
placed implicit reliance. With respect to any surplus, it was to go
equally between Mr. Wilson Gray and petitioner ; but it is very
doubtful if there will be any surplus, and quite certain that, in anj
event, it will be very trifling. As already mentioned, the testator
recovered from the illness in the course of which he had made said
will ; and although the will itself remained in his hands, from itm
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date ap to his death, he made no alteration or change ; and the fol« '
lowing indorsement, in testator's handwritings appears on it, viz.,
* The last will and testament of John Gray.' "
The case then states the mode in which the petitioner proposed
that the property of the testator should be distributed, under five
heads, which would include an annuity of £60 a-year for one son,
and sums amounting to £1300 or £1400, for other children ; and as
to the surplus, the words of the case are, ** Sixthly ; the surplus, if any ^
in equal shares to Mr. Wilson Gray and Dr. Gray,'' the petitioner.
Mr. Dtaay stated his opinion at length to the several queries ;
and although he expressed a doubt on the question which now arises,
his opinion was unfavourable to the claim now made by Dr. Gray,
Mr. Deasy considering that Mr. Moses Wilson Gray and the peti-
tioner took the property subject to a trust for distribution amongst
the other members of the family. If the construction sought to be
put on the will by the petitioner be well founded, he and Mr. Wil*
son Gray, his co-trustee, have an interest directly opposed to their
duty. If they have an unrestricted power to appropriate any sums,
however small, between the other children, and that they are enti-
tled to the surplus, the effect would be, that the trustees might take
a surplus consisting of the principal part of the property.
Mr. Lloyd appeared for the co-trustee, and makes no claim, con-
sidering that he and the petitioner held the property on trust for
the other members of the family.
The first question is, whether any trust appears on the face of
the will itself? It is contended, on the part of the petitioner, that
the devise being to the petitioner and his co-trustee ** in the most
absolute manner," there was no trust. I think that argument is
met by the case of Bernard v. Minshull (a) ; in which a devise to a
person *' absolutely" did not prevent his being considered a trustee,
and excluded from any share of the property affected by the trust
It is not, however, necessary, as it appears to me, to decide whether
there was a trust on the face of the will, as the facts stated in the
case laid before Counsel, which was drawn, up under the directions
of the petitioner, and which case the petitioner incorporates by
(a) I Johnf. 276.
1860.
RolU.
Judgmtnt.
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224 CHANCERY REPORTS.
I860. reference in the petiticHi, establishes that there was a trust; and the
trust is, in my opinion, binding on the petitioner and his co-trustee.
The co-trustee admits that it is binding. ^' If an estate is suffered
to descend, the owner being informed bj the heir that, if the estate
Judgment^ is permitted to descend, he will make a provision for the mother,
wife, or any other person, there is no doubt Equity would compel
the heir to discover whether he did make such promise. So, if a
father devises to the youngest son, who promises that, if the estate is
. devised to him, he will pay £10,000 to the eldest son, Equity would
compel the former to discover whether that passed in parol ; and if
' he acknowledged it, even praying the benefit of the statute, he
would be a trustee to the value of the £10,000." That was laid
down by Lord Eldon, in Strickland v. Aldridge{a), Mr. Jar-
man^ in his Treatise on Wills^ 2nd ed., vol. 1, p. 343, states,
'* And it is clear that, in such a case, if the trust were denied by
the heir or devisee, it might be proved aliunde^
In Lewen on Trusts, 3rd ed., p. 70, it is laid down, after refer-
ring to Strickland v. Aldridge : — '' And so generally, if a testator
devises an estate to A, the beneficial owner on the face of the will,
but upon the understanding between the testator and A that the
devisee will, as to a part, or even the entirety of the beneficial
interest, hold upon any trust which is lawful in itself, in favour of
B, the Court, at the instance of B, will affect the conscience of A,
and decree him to execute the testator's intention." Many of the
authorities in support of this proposition are referred to by Mr.
Lewen ; and it is not necessary to go through them, as I apprehend
there is no doubt on the subject. The last case in which, I believe,
the law is so laid down is Russell v. Jackson {b). If this be so, I
cannot understand how it can be contended that there was no under-
standing between the testator and the petitioner, or that he and hia
co-trustee could, consistently witH what is stated in the caaie drawn
np for Counsel under the petitioner's directions, hold the property
discharged of any trust. I am, therefore, of opinion that the first
question raised by the notice of appeal, that the petitioner and his
oo-trustee take the property unaffected by any trust, is unsostain-
(a) 9 Ves. 519. (6) 10 Hare, 212.
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able. It 18 to be observed that the petition prays that the trusts of
the will may be carried into execution.
The second question raised by the notice of appeal is that, if
there was a trust, all the children of the testator, including the
petitioner and the respondent, Moses Wilson Gray, are entitled to
the benefit thereof. Now the notice of appeal does not define what
the extent of the claim of the petitioner is. His co-trustee would
noty as I understand, consent to any allocation of the property,
except in accordance with the declared intentions of the testator ;
and, if not, how is the property to be divided ? If it was divided in
equal shares between all the children, including the petitioner and
his co-trustee, this would, I apprehend, be at variance with the
understanding which existed between the petitioner and the testator,
as set out in the case. The case states that, " with respect to any
surplus, it was to go equally between Mr. Wilson and Dr. Gray
(the petitioner) ; but it is very doubtful whether there will be any
surplus, and quite certain that in any event it will be very trifling;*'
t. ^., that, after carrying out the intentions of the testator, which, I
think, it is plain there was an understanding should be carried out,
if the property was devised to Mr. Wilson Gray and the petitioner,
it was doubtful whether there would be any surplus, and, if any,
that it would be very trifling. If so, the division of the property
between all the children, including the petitioner and his co-trus-
tee, would be directly at variance with, the intention of the testator,
as stated in the case. If the petitioner had sought that the
Court should carry into eflect what the petitioner considered to
be the understanding which existed between him and lib father,
I could understand the petitioner alleging that there would be a
surplus divisible between him and Moses' Wilson Gray ; but that
is not the case made by the notice of appeal, or during the argu-
ment. The case made by the notice of appeal, and during the
argument, was, '* that tbe petitioner and the respondent, Moses Wil-
son Gray, take the proportions devised to them by the testator's
will, unafiected by any trust, but with an absolute discretion and
power in them to make such provision for the testator's children as
they should think proper ; " but that, if there was a trust, ** all the
\ VOL. II. , 29
1860.
RolU.
Judgment.
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CHANCERY REPORTS.
1860.
RoUs.
Mgfuetu.
children of the testator, including the petitioner and the respondent,
Moses Wilson Gray, are entitled to the benefit thereof; ** that is,
that, although there should be no surplus after carrying out the
understanding between the testator and the petitioner, the petitioner
was to take an equal share of the property with the other children.
A decision to that effect would not carry into effect the trust, but
would be opposed to it. There is, however, a legal difficulty in the
way of the petitioner claiming half of the surplus, or any portion of
the testator's property. In Brigg$ y. Penny (a), Lord Truro laid
down as follows: — *'It is most important to observe that vagueness
in the object will unquestionably furnish reason for holding that no
trust was intended ; yet this may be countervailed by other consider-
ations which show that a trust was intended, while, at the same
time, such trust is not sufficiently certain and definite to be valid
and effectual ; and it is not necessary, to exclude the legatee from a
beneficial interest, that there should be a valid or effectual trust ;
it is only necessary that it should clearly appear that a trust was
intended. Now this is precisely the case with the present bequest. I
agree with the Yice-Chancellor in interpreting ^ views and wishes '
to mean * designs and desires ; * and the very expression of confi-
dence that Miss Penny would make a good use and dispose of the
property in a manner in accordance with the testatrix' designs and
desires or intentions appears to me to amount to a declaration that
Miss Penny was to hold the property for that purpose ; or, in other
words to the same import, upon trust. It seems to me to be tanta-
mount to a bequest upon trust; and if so, that is sufficient to
exclude Miss Penny firom taking the beneficial interest. Such views
and wishes may. be left unexplained — such trust be left undeclared ;
but still, in such case, it is clear a trust wad intended ; and that is
sufficient to exclude the legatee from a beneficial interest. Once
establish that a trust was intended, and the legatee cannot take
beneficially. If a testator gives upon trust, though he never adds a
syllable to denote the objects of that trust, or though he declares the
trust in such a way as not to exhaust the property, or though he
declares it imperfectly, or though the trusts are illegal, still, in all
(a) 3 M. & G. 556, 557.
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these cases, as is well known, the legatee is excluded, and the next-
of-kin take. Bat there is no peculiar effect in the word * trust ; '
other expressions may be equally indicative of a fiduciary interest,
though not equally apt or clear.** In Russell v. Jackson (a), the
Vice-chancellor stated : — ** It is clear that the devise was made to
these defendants for the purpose of holding it upon trust ; and, being
held by them upon trust, the result, as I conceive, is, that they
cannot take beneficially, in any view of the case." Of course, if a
testator shows an intention that a trustee should take beneficially, he
may do so ; but, in the absence of such intention, a devise on trust
excludes the trustee from claiming to take beneficially. In the case
of Bernard v. MinshuU (6), Vice-chancellor Wood says : — •• Sup-
pose that, by the precatory words in a will, the donee is requested
to apply property, the amount of which is ascertained^ *for the
benefit of ,* or ^ for the benefit of the person I have named in
a paper that will be found in such a drawer,' and there is no such
paper found, in either case there would be uncertainty enough as to
the object ; and yet such a trust would be created as would effectu-
ally exclude the donee from applying the property tO' his own use."
Dawson v. Clarke (c) was referred to by the petitioner's Counsel;
but that case has been overruled, as also the decision of Vice-Chan-
cellor Bruce, in -Russell v. Clowes^ and of the Vice-Chancellor of
England, in Mapp v. Eleoek. The cases on the point decided in
Dawson v. Clarke are collected in Read v. Steadman(d), which
is an important case on this subject. Assuming, however, that the
Court could not in general carry into execution a trust where so
complete a discretion was vested in the trustees as in the present
case, as to the mode of distribution, yet in such case the Court, in
the event of the trustees not concurring in the exercise of the dis-
cretion vested in them, would divide the fund between the other
children who were objects of the trust. The petition does not
make the case that there was an intestacy as to the beneficial
interest in the property devised on trust to the petitioner and
Moses Wilson Gray, and that the petitioner is entitled, as one
1860.
Rolls.
Judgment*
(a) 10 Hare, 214.
(c) 15 Ves. 409.
(A) 1 John. 286, 287.
(<0 26 Bear. 500.
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228
CHANCERY REPORTS.
1860.
RoUs.
Judgment,
of the next-of-kin, to an equal share. The petition prays that
the trusts of the will may be carried into execution. If the
petitioner had by his petition contended that, in the event of the
discretionary power not being exercised by the petitioner and his
co-trustee, there would be' an intestacy, the answer to such a
case would have been that, although where a discretionary power
is given to trustees, the Court has in general no jurisdiction to
control them in the exercise of that discretion, provided their
conduct be bona fide^ and not influenced by improper motives,
yet the Court will interfere where the discretion of the trustees
is infected by misbehaviour, or they decline to undertake the duty
of exercising their discretion. The cases on this subject are very
numerous, and are collected in Mr. Lewin*$ treatise on the Law
of Trusts^ 3rd ed., pp. 638 and 643.
If the petitioner was to contend that the non-exercise of the dis-
cretion vested in the trustees in this case was to create an intestacy
as to the beneficial and equitable interest in the property of which the
legal title was vested in them, I apprehend that a Court of Equity
would not permit the petitioner to derive a benefit to arise from his not
executing the trust reposed in him in conjunction with his co-trus-
tee, and would not allow hin> to claim as one of the next-of-kin,
on ai^ intestacy arising out of his own act. I think, therefore,
the Master was justified in holding that the other children of the
testator (exclusive of the trustees) are entitled to the entire pro-
perty, the trusts not having been exercised. I sent in the order,
shortly after 'the Court rose last Term, refusing the motion ; but
I hav^ thought that the parties might wish to know the grounds
of my decision.
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CHANCERY REPORTS. 229
1861.
£. £. Court,
JLHtirftri Htf^tntti^ Court.
In the Matter of the Estate of
WILHELMINA HAMMERSLT, Owtur and PetUianer.
Jon. 17.
Ths sabject of this case was a settlement made on the marriage a marriage
of Richard Hammerslj and Wilhelmina Sadlier, and dated the 30th ^^^^old
of April 1808. The facts of the case and the passages which were J^« ^ hoW
the subject of criticism will be found at large in the judgment ^ ^e wid
The question arose on objection to the draft schedule of.incum- ^. ^^ j^
hem and fu-
brances. signs, from the
perfection of
these presents,
for and duing
Mr. Wairren (with him Mr. E, Jf. Kelly and Mr. Flanagan)^ the term of his
in support of the schedule, cited Jomes\ y. Keamay (a) ; Morning- without im-
ion V. Keane (6) ; Holliday v. Dorrton (c) ; Barron v. Barron (d) ; 5^,™*with^a
power to lease,
remainder to
Mr. Hemphill, Mr. Roper and Mr. F. Whi$e, in support of ^^ ^^
objections to the schedule, cited White v. Anderson (e); Metealf f^^ from the
decease of JLf
to secore a
jointure of £80 to B (A*s wife). TheD follows a covenant bj A, charging the jointure
on after-acquired estate, with power of distress; ' and further, that said l^ds, after the
decease of the survivor of A and B, in case there should be but one child of said
marriage, to the use of such only child, and the heirs of his or her bodj lawfhllv
issuing; and in case there should be more than one such child, then to such
children in such shares and proportions as the said A shall bj deed or will
appoint; and in default of such appointment, then to the use of all the children,
as tenants in common, share and share alike." — H§ld, that the words '* and lus
heirs " should be rejected, and that A takes a life estate.
That the clause beginning^ '* and further ** is a limitation in contmuation of, and
direct sequence upon, the limitations to trustees to preserve.
Semble — That if that clause be a covenant to settle after-acquired property on the
children, a Court of Equity would not mould the trusts in anj manner, as thej are
fuUj declared.
Semblg — That, assuming it to be such a covenant, after-acquired property, settled,
irrespective of such covenant, by A on a child, must be brought into hotchpot,
(a) 1 Dr. A W. 134. (6) 2 De. O. A Sm. (judgt.) 318.
(c) 15 Beav. 480.
id) 8 It. Chan. Rep. 366. («) 1 Ir. Chan. Rep. 419.
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230 CHANCERY REPORTS.
1861/ V. ArchbUhop of York (a) ; Moore v. Cleghom (b) ; Barlow y.
C — l<v ' Osborne (c) ; BusheU y. Bushell (d) ; Prachey on Settlemenis,
In re
HAMMEBSLT P« ^24.
Judgment,
Haroreave, J.
. . This case comes before me upon the objections of Mr. and Mrs.
Sargint and of Mr. Smith to the draft schedule. The subject-matter
of the objections is the surplus fund arising from the sale of the lands
sold in this matter, after payment of the charges. The draft
schedule proposes to deal with this fund according to certain appoint-
ments made by Wilhelmina Hammerslj, under a power contained in
her late husband's will, by which appointments she has divided
the fund in unequal shares among certain of her children. The
objectants contend that no such power of appointment exists, inas-
much as they allege that this property is bound in Equity by the
provisions of a certain deed of the 20tlrof April 1808, under which
the children^ take the property equally, in default of any appoint-
ment by Richard Hammersly himself, the deceased husband of
the owner.
These objections are resisted on these grounds: — ^first; that
the property is not affected in the manner suggested by the deed
of 1808. Secondly ; that even if it be so affected, the children
are entitled under that deed to life estates only (a view which would
partially defeat the objection of Mr. and Mrs. Sargint, and would
totally defeat that of Mr. Smith) ; and that, thirdly, Sargint and wife
have already obtained a provision from Richard Hammersly by a con-
veyance of another estate, and that they must either be content with
that provision, or bring it into hotchpot.
The estates sold in this matter were acquired by Richard Ham-
mersly after the execution of the deed of 1808, which was the
settlement made on his marriage with Wilhelmina Hammersly ; and
the first question is, whether that deed eontains a covenant by
Richard Hammersly to settle all his after-acquired estates ? The
question turns entirely on the construction of the deed, each claaae
(a) 1 M. & Or. 556. (&) 10 Beav. 423.
(c) 6 H. of L. Cas, 575, (rf) 1 Sch, & Let 90.
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CHANCERY REPORTS. 231
of which 18 conceired in technical langnage, but whose daiues are 1861.
pot together in a singularly inartificial manner. Ito constmctiony > \
therefore, requires a close consideration of the whole deed taken hammbeslt
together, and a critical examination of its several clauses and of
their grammatical and logical connection inier $e. In construing
such a deed, it is idle to speculate on the probable motives of the
parties, or on the consequences flowing from any Articular construc-
tion of the deed. The property which Richard Hammersly had at
the time, and which was actually dealt with by the deed, consisted
of leaseholds for lives only ; and it is suggested as improbable that
the lady and her friends would becontent with a settlement of pro-
perty of this temporary character; on the other hand, it is suggested
to be at least as improbable that Richard Hammersly would bind
himself to settle all his a(tei:-acquired estates indiscriminately, thus
precluding himself from ever purchasing land, except for the pur-
poses of the settlement, and rendering it impossible for him to
provide for a future wife and his family by any future marriage.
On this, I can only observe that there is no intrinsic absurdity in
either of these two classes of settlement, and that it is simply the
duty of the Court to ascertain which of the two was intended, by
construing the deed and giving effect to its provisions according to
the rules of the law. The deed is made between Richard Ham-
mersly, of the first part, Richard Sadlier and his daughter Wilhel-
mina (now Mrs. Hamn^ersly), of the second part, and Philip Corbett
and William Sadlier, of the third part It recites the intended mar-
riage ; it then recites, fuUy and in technical language, three leases
for lives, of various townlands in the county of Tipperary, made to
John Hammersly, and that Richard had become entitled to these
lands, with a certain exception, under the will of his deceased father.
The deed then witnesses that, in pursuance of the said marriage
agreement (which must mean the recited agreement for the mar-
riage), and in consideration of the marriage, and of the lady's fortune
of £1000, and in order to make a provision for the said Wilhelmina,
by way of jointure, and in lieu of dower, and also as a provision for
the issue of the marriage, in manner thereinafter expressed, Riehard
Hanunersly grants and assigns unto. Corbett and Sadlier, their heirs
and assigns, all that and those the town and lands (describing them
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232 CHANCERY REPORTS.
1861. at lengtli) oomprised in the leases, to hold to them, their heirs and
L. E. Court.
r — ' assigns, for the lives in the leases, to such uses, upon snch trusts.
In re
HAMMBRSLY <^d to and fbr such intents and purposes, and under and subject
Judffment.
to suah provisoes, limitations and agreements as are thereinafter
expi^essed and declared, of: and concerning same ; and, subject to the
head-rents payable thereout,* to the use of the said Richard Ham-
mersly, and his heirs and assigns, from the: perfection of these pre-
sents, for and during the term of his natural life) without impeachment
of waste, with a proviso and declaration authorising him, during his
life, to make leases, so as not to diminish the existing profit-rent ;
and after the determination of that estate, then to the use of Corbett
and Sadlier, and their heirs, during the life of the said Richard Ham-
merslj, upon trust to support and preserve the contingent uses and
estates thereinafter limited firom being defeated and destroyed ; and
immediately after the decease of the said Richard Hammersly, to the
use of the said Wilhelmina Hammersly, to receive thereout the
yearly sum or jointure of £80 sterling, by equal half-yeariy pay-
ments, for the term of her natural life, with power to enter into said
lands to distrain. The deed then proceeds in the fc^owing language: —
** And the faid Richard Hammersly, in oonrideradon of the said intended mar-
riage, and of the said sun of £1000, so secured, to be paid as aforesaid, the
portion of the said Wilhelmina, hereinbefore mentioned, for himself, his heirs,
executors and administrators, doth coyenant, promise and agree, to and with the
said Philip Corbett and William Sadlier, their executors and administrators, that
he the said Bichard Hammersly, by these presents, doth charge and incumber all
and singular and erery the sereral and respective estates, towns, lands, holdings,
tenements, hereditaments and premises, wheresoever situate, whereof the said
Bichard Hammersly is now seised or possessed or entitled to, and which he shaU,
at anytime hereafter, become seised, possessed of or entitled unto, to the payment
of the jointure of £80 a-year, as aforesaid, to the said Wilhelmina, his intended
wife, and with the like power of distress for recoveiy thereof as hereinbefore men-
tioned. And further, that the said lands, after the decease of the sunrivor of them
the said Bichard Hammersly and Wilhelmina Sadlier, in case there should be but
one child of said intended marriage, to the use of such only child, and the heirs of
his or her body lawfully issuing ; and, in case there should be more than one such
diild, then to such children* in such shares and proportions as the said Richaid
Hammersly shall, by deed or wiU, appoint ; and, in defirndt of such appointment,
then to the use of all the children, as tenants in common, share and share alike ;
and, if there should be no children, then to the right heirs of the said Bichard
Hanmiersly, subject to the conditions aforesaid."
The deed contains nothing further material to the issue. It com-
mences then a new operative part, in the nature of a covenant and
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CHANCERY REPORTS. 233
agreement, settUng the wife's fortune of £1000, and closes with a 1861.
, Zi» E, Court »
covenant by Richard Hammenlj for further assurance, in general ' ^— — ^
/n- re
terms, and nsual trustee clauses. The question is, whether the hammbkslt
words, " and further, that said lands, after the decease of the sur- j^^^l^ZL^
viyor, in case there should be but one child, to the use of such only
child, and the heirs of his or her body," &c., are to be read in conti-
nuation of the limitation of uses, treating the previous words merely
as a covenant by Richard Hammersly to give further security for
the jointure out of all his other and after-acquired property, or
whether they are a continuation of the covenant? In the former
case, they apply only to the lands actually conveyed ; and, in the
latter case, they apply to* all the settlor's estates, existing or future,
and import a covenant to settle them on the issue.
In the first plaee, and in support of the latter view, it is con-
tended that the lands conveyed by the deed are not, in fact, thereby
put in settlement at all, inasmuch as the first limitation gives the
absolute interest to Richard Hammersly ; and that the words pur-
porting to give him a life estate, and also the subsequent limitation
to trustees, for his life, are void. I am unable to concur in that view.
I can quite understand that, in construing a limitation to a man,
and his hdrs, for his life, the Court would prefer to reject the words
"for his life,*' rather than the words ''and his heirs;'' but where
this limitation b followed up by remainders, to take effect on his
decease, and is accompanied by It power of leasing, it appears to me
that the Court ought to support these limitations, by rejecting the
worda " i^nd his heirs," which lare thus cleariy shown to be intro-
duced by mistalw. Where the Court must reject either the words
limiting the fee, ^r the words Hmiting a life estate, it will reject the
former, if the other limitations dearly show that a life estate was
intended. If this be so, we have a limitation to Richard Hammersly
for life, with a leasing powor, then a limitation to trustees, for
Ridiard's' life, to support the contingent remainders thereinafter
limited, and then a legal jointure, with power of distress. We arei
then led to the inquiry, where are these contingent remainders, for
the support of which this provision is inserted, to be found ? The
only part of the deed in which they can be found is in the clause
now «nder consideration. It is indisputable that, if these legal con-
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234 CHANCERY REPORTS.
186L tingent remainders are not the limitationB to the children, contained
X. E. Court, . , , , ^ . , . , . , ,
'— -> m that clause, they have no existence ; and construing this deed so
In re
HAMMBB8LT &s ^ &^^ eShct to all its clauseSi and so as to make one part of it
_ . consistent wiUi another, I cannot do otherwise than hold that the
Juagwtent*
limitation of uses to children, which I have read, are the very con-
tingent uses and estates which are to be supported and preserved by
the limitations to trustees during Richard Hammersly's life.
The question still remains, whether these words may not perform
the double ifunction of limiting the legal continent remainders in
the' estate dealt with, and, at the same time, declaring the uses to
which the other and after-acquired property is to be conveyed ? I
am disposed to think that this view is not grammatically or logically
possible. In order that they may perform the latter function, it is
essential that they must be read and oonati^ed as part of the cove-
nant of Richaid Hammersly with Corbett and Sadleir ; and they
would' thus h6 completely separated, in grammatical construction,
from that part of the deed which contains the limitations of uses. I
am, therefore, of opinion that, upon a comprehensive view of the
whole of the deed taken together, the limitations to the children are
limitations of legal contingent remainders, in continuation of and in
direct sequence upon the , limitations to trustees to preserve those
remainders i and that the covenant is inserted, at the close of the
limitation of the jointure, merely for the purpose of better securing
that jointure, and is to be read as a parenthetic tack or addition
to the jointure.
If we pass from the general structure of the deed to a minute
criticism of its language, considerations may be found both adverse
to, and in support of, this view. The covenant, taken by itself, can
undoubtedly be read as a covenant that Richard Hammersly doth
incumber all present and future estates with the jointure of £80
a-year; and further, that said lands shall go to the use, &c ; and in
order to do this, it is only necessary to supply the verb *^ shall go,**
or " shall enurct" or " shall stand limited ; " and, if the covenant
stood by itself, the Court would make no difficulty in supplying such
words. The want of this verb, however, is, perhaps, not altogether
without signification ; because, undoubtedly, if these words are a
mere continuation of the limitation of the uses, no verb is required.
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CHANCERY REPORTS. 235
as it then becomes only one of a string of uses which have been 1861.
i. E, Court.
already aptly commenced in the hiUfendum of the deed ; and, in- >.— «v '
In re
deed, if it were not for the introduction of the word " that ** after hammbrslt
"further," I think no grammatical difficulty would have existed. rT~^
Again, the use of the words '^ said lands ** merely, in the limitation
to the children, has been referred to as indicating a reference to the
lands specifically described and conveyed by the deed, rather than
to the existing and future property of the settlor, which, when men-
tioned, is described as estates, towns, lands, holdings, tenements, here-
ditaments and premises. I do not attach much importance, in this
case, to these minute considerations, though I will not say that they
are wholly without weight ; I prefer to base my opinion on the general
scope of the deed.
On this question I will just make this further observation: — I
have expressed an opinion that the legal effbct of the limitations is
to give an estate to Richard Hammersly, for life, with power of
leasing, with remainder to trustees, for his life, to support contin-
gent remainders; but, on the principal question, I should have
arrived at the same conclusion, even if I had felt myself obliged to
hold that the estate was limited to Richard Hammersly in fee, and
that the subsequent limitations were void. The considerations upon
which I have based my conclusion do not depend upon the effect of
the limitations of the lands conveyed, or even on the question
whether those limitations have any legal efiect at all or not, but
simply on the fact that such limitations are in terms expressed in
the deed.
The view which I take on this first questi6ti disposes of the
objections, and renders it unnecessary to consider the other points ;
but, as the point which I have decided is not free from doubt, and
as the other questions were discussed, I will shortly state my opinion
upon them. Assuming that there is a covenant to settle all other
and a(W-acquired property of the settlor, I am of opinion that it
would be satisfied by a conveyance of such property to the uses
mentioned in the deed, stating the uses in the identical words iised
in the deed ; and that a Court of Equi^ could not and would not
mould those limitations in any manner. Although the trusts are
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236 CHANCERY REPORTS.
1861. not executed, jet they are fully declared, and could not be added to
\» \ ■■/* or altered, by adding words of limitatioD, or cross remaiiiders
HAMMBRSLT ^^^^^ ^^® children, or provisions for maintenance, or any other
Judgment,
usual clauses. But I think that the words would be sufficient to
pass to the children the absolute interest in freehold leases, and that
such interest would pass to the executors of a deceased child, under
the statute abolishing general occupancy.
On the remaining question I find, on reference to the deed set-
tling fiallyhane on Mr. and Mrs. Sargint, that it does not purport to
be made in execution of any supposed power vested in Richard
Hammersly, under the settlement or otherwise ; and that, in fact, it
is an ordinary conveyance or settlement made by an owner in fee.
I must regard this as a satisfaction, pro tanio at least, of the cove-
nant, in so far as Mrs. Sargint has a beneficial interest in such
covenant ; and that, if she fil^d a bill for specific performance of the
covenant, she would fail, if the property conveyed to her, or settled
with her consent, was equal in value to her aliquot share of the
settlor's real estate ; and that if it was of smaller value she could
only rebover the balance ; or, in other words, that she would be
obliged to bring this provision into hotchpot.
In tke Matter of the Estate of the
Assignees of JOHN SALLERY, Owners and PetiHoners.
Feb. 20.
A, by his will, The facts of this case, which was unsupported by authority <m eithw
dated 29th of « • i
May 1839, be- aWe, appear in the judgment,
queathed to
his ill^itimata fon, B. S., certain leaaeholds, and, if the said B. S. should die with-
out "heirs or issue, " orer. — Held, that as the 29th section of the Wills Act is
expresslj confined to the word ** issne," it makes no change in the meaning of the
expression " die without heirs of the body; " and, therefore ('* without heirs, " in
the said will, mean^ " without heirs of the body," R. S. being illegitimate), the
will did not confer the absolute interest on B. 8., with an executory devise oyer
in the case of his dyins without issue liying at his death, but an estate tail, and, the
property being leasehold, the absolute interest.
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CHANCERY BEPOETS. 237
Mr. Henry FUzgihhon and Mr. J. Vereker appeared for the 1861.
X. E. Ccwi.
several parties.
DOBBS, J. Judgment.
This case would have been perfectly free from doubt, were it not
for the 29th section of the Wills Act, 1 Ftc, 0. 26. Robert Sallerj,
senior, by his will, bearing date the 20th of May 1839> amongst other
things, bequeathed to his ill^timate son, Robert Sallery, all the part
of his holding of the lands of Sandymount, containing fifty-four
acres, at the yearly rent of thirteen shillings per acre ; and the tes-
tator ordered that if the said Robert Sallery should die without
heirs, or issue, the said lands of Sandymount should revert to the
testator's brother, John Sallery, his heirs, executors, administrators
and assigns. Now there is no doubt that if this will were to be con-
strued by the law as it stood before the late Act, Robert Sallery being
illegitimate, the word '* heirs ** must be taken to mean ^* heirs of the
body ; " and therefore the words *' without heirs or issue ** would have
been held to mean an indefinite failure of issuer and the efiect of
those words would have been to create an estate tail in freehold
lands, and an absolute interest in chattel lands, in Robert Sallery,
the devisee. But the old law has been changed by the 29th section
of the Wills Act, which enacts, ** That in any devise or bequest of
real or personal estate, the words ' die without issue,* or ^ die without
leaving issue,* or * have no issue,' or any other words which may im-
port either a want or failure of issue of any person in his lifetime,
or at the time of his death, or an indefinite failure of his issue,
shall be construed to mean a want or failure of issue in the lifetime,
or at the time of the death, of such person, and not an indefinite
£fdlure of his issue, unless a contrary intention shall appear by the
wilL" Now if this section applies to the present case, Robert
Sallery does not take absolutely ; but there is an executory devise
over to John Sallery, in the event of Robert Sallery not leaving
issue living at his death. The legal meaning of the phrase " without
issue," under the old la#, was opposed to the popular one, according
to which it signified *< without children ;** and, therefore, by the
Wills Act of 1837, a change was introduced, the efiect of which
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238
CHANCERY REPORTS.
186L
Xr« E,. Court*
Judgment,
was to make the legal meaning conformable with the popular one»
as being present to the minds of most testators. Bot the change
in the law is, by the words of the Act, confined to the construction
of the words "die without issue,'' and the like words, and does
not, in terms, apply to the construction of words which import
dying without heirs of the body ; it being a clear principle of con-
struction that " expressio unius est exelusio alterius ;" and there not
being the same reasbn for a change of construction where the
words "heirs of the body" are used, as where the word "issue"
is used, I am of opinion that the words " die without heirs of the
body," and similar expressions, are not within the meaning of the
section, and therefore are to be construed as they were before the
Act passed. I have been unable to find any authority on this
point ; but, for the reasons I have mentioned, it appears to me to
be qikite clear, that the intention of the Legislature was to confine
the change of construction to the cases in which the word " issue "
is used by testators. It is a well known principle of construction,
that effect should be given, if possible, to every word of a will.
Now the words in this will are not only "without issue," but
"without heirs or issue ; " I must, therefore, if I can, give effect
to both words. The testator has shown throughout the will that
he perfectly understood the meaning of the word heir ; he has used
it several times, but never otherwise than in its strictly legal sense
as a word of limitation. Robert Sallery's estate, therefore, does
not go over until he dies without heirs of his body ; the effect of
which would be to give him an estate tail in freehold lands ; and
the property here being a chattel real, he takes the absolute in-
terest therein.
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CHANCERY REPORTS. 239
1860.
CA. Appeal,
PHILIP CHARLES NEWTON, PlainHff;
PHILIP JOCELYN NEWTON, HENRY NEWTON,
ARTHUR FITZMAURICE and
BEAUCHAMP FREDERICK BAGENAL, Defendants:
THOMASINE JANE ROBERTS, Iniervenient.
Nov. 5, 6, 9.
This oauae came before the Court on a petition presented by the Where the
Jadge of the *
defendant Philip Joceljn Newton, heir-at-law of John Newton, Court of Pro.
by which this defendant soaght to reverse an order of the Jndge igsaeg respect-
of the Court of Probate, directing certain issues to be tried by ^ papei^
a special jury before the Court of Probate itself. The following Ap™^**^^
were the material fiicts appearing on the petition : — The said J^^r^^merd*
John Newton was, at the time of his death, seised in fee-simple on the ground
*^ that theiisues
of certain lands in the county of Carlow, and died in October 1869* directed do not
excmde aU .
Before 1858, John Newton duly executed several testamentary consideration
of questions of
instruments; among others, a will dated the I6th of September law.
1860; another dated the 23rd of February 1852; another dated Statement.
the 29th of December 1852 ; a codicil dated the 6th of October
1853; another dated the 3rd of Deceinber 1854; and a third
dated the 17th of October 1854. From the time of dieir exe-
cution these documents remained in the custody of various parties,
until after the death of the said John Newton. John Newton
duly made another will, dated the 4th of February 1858, and
thereby revoked all former wills by him made, and thereby devised
all his real property to William Forbes Johnson and his heirs,
upon trust, out of the rents and profits thereof, to pay yearly
unto Miss Thomasine Jane Roberts, the intervenient, an annuity
of £100 a-year. Then he directed the trustee, by sale or mortgage,
to raise the sum of £500 for Beauchamp Newton Johnson, son
of Charles Fraser Johnson, solicitor ; then, subject to the annuity
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CHANCERY REPORTS.
1860.
Ch, AppeaL
V. , '
19EWTON
V.
NBWTON.
Statement,
and bequest, he devised his said estates to the use of the children
of his marriage, as tenants in common in fee, and, in default of
such issue, to . the use of Philip Charles Newton, the plaintiff,
for life, with remainder to hb first and other sons in tail male,
with remainder to his issue female, as therein mentioned, remainder
to his own right heirs ; and the said testator thereby provided
for payment of his simple contract debts, and payment of funeral
and testamentary expenses, out of two policies of insurance for
£1000 each; and also directed that the residue afceir those' pay-
ments should be handed to his said nephew, Philip Charles Newton,
to whom testator thereby bequeathed such residue. The testator
then bequeathed the residue of his property, real and personal,
upon trust, for the person or persons who under his will might,
at the expiration of ten months from the day of his death, be
entitled to the lands thereinbefore devised. The will was prepared
in Dublin by said C. F. Johnson, a solicitor, and was executed by
the said John Newton on the day on which it bears date. Imme-
diately upon its execution, the said John Newton took the will into
his own possession ; and, though search was made for it after the
death of the said John Newton, it was not forthcoming; but a
document purporting to be a copy or the original draft of the
said will was retained by said C. F. Johnson, and lodged in the
Court of Probate.
John Newton made and published another will, dated the 24th
of April 1868, thereby revoking all former wills theretofore made
by him; and thereby, after a bequest to his wife for life, he
bequeathed all his other property, real and personal, to P. C.
Newton, the plaintiff, his heirs and assigns, for ever, and nomi-
nated the said plaintiff his residuary legatee, and Arthur Fitzmau-
rice to be e:2^ecutor. The last-mentioned will was prepared by
Charles Thorp, a solicitor, was executed by John Newton, and,
until after the death of the said John Newton, it remained in
the custody of the said Charles Thorp.
The said John Newton made another will, dated the 11th of
January 1859> thereby revoking all former wills; and by it,
after certain bequests to his wife during her life, with remainder
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CHANCERY REPORTS. 241
to the said plaintitf, and directing his personal estate to be sold, I860.
Ch. Appeal,
he devised his real estates to the said Arthur Fitzmaurice, his
heirs and assigns, to the use of any child he might have, his or
her heirs, for ever; and, in case there should be no such child,
subject to the annuities thereby charged thereon, to the use of statement.
P. C. Newton for life, remainder to his firkt and other sons in
tail ; in default, to Beauchamp Frederick Bagenal for life, remainder
to his first and other sons in tail, and, in default, to his own right
heirs; and he thereby gave certain annuities and legacies, and
appointed Arthur Fitzmaurice sole trustee and executor of his
said will. This last will was prepared by Thomas Jameson, a
solicitor, and was duly executed on the day on which it bears
date; and, shortly af^r its execution, it was forwarded to said
Fitzmaurice, in whose possession it remained until after the death
of the said testator.
On the 7th of February 1859) Mr. Newton made a codicil to
his last will, which was prepared by Mr. John Litton, a solicitor,
and was duly executed on the day it bears date. From the time
of its execution until after the death of Mr. Newton, the codicil
remained in the possession of Mr. Litton. On the 16th of February
18599 Mr. Newton duly made a codicil of that date, which com-
menced as follows : — '* This is a codicil to the last will and testa-
ment of me, John Newton, of Bagenalstown-house, in the county
of Carlow, Esq., bearing date on pr about the 4th day of Febru-
ary 1858, and which I desire may be considered as annexed to
and be taken as part thereof." It then made provisions revoking
the bequests to Philip Charles Newton, in case of marrying in
the lifetime of the testator without his knowledge; and it termi-
nated— '* In all other respects I confirm my said will, especially
that part of it whereby I charge my said estates with the sum
of £500 for, and bequeath the same to, Beauchamp Newton John-
son, and which bequest I hereby repeat and re-aflSrm." The
last-mentioned codicil was prepared in Dublin, by the said C. F.
Johnson. After its execution, this codicil remained for a short
time in the possession of the said G. F. Johnson ; but, on th»
10th of May 1859, ^r. Newton wrote the following letter:-^
VOL. 11. 31
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242
CHANCERY REPORTS.
1860.
CA. Appeal
NEW TON
V.
l^EWTON.
Statement.
"My dbar Johnson — I wrote to you on Sunday for the paper
I executed about Ham, on account of his affair with Miss B. ;
will you be so good as to send it to me by return. — Ever yours,
most truly— -John Newton." The person referred to in the said
letter as ** Ham " was the plaintiff P. C. Newton, and the paper
referred to, the codicil of February 1859; and the said Charles
Fraser Johnson forwarded it by post to Mr. Newton.
The petition of appeal then alleged that Mr. Johnson retained
a copy or original draft of this codicil, which was lodged in Her
Majesty's Court of Probate. That search was made for the said
last-mentioned codicil, after the death of the said John Newton,
but that it could not be found; and the appellant alleged that
it was destroyed by the said John Newton in his lifetime, with
the intention of revoking the same.
Mr. Newton having died, the plaintiff in the Court below,
Mr. P. C. Newton, on the 27th of March 1860, filed the fol-
lowing declaration in the Court of Probate : — " Philip Charles
Newton, by Thomas Jameson, his attorney, says that John New-
ton, Esq., late of Bagenalstown-house, \n the county of Carlow,
deceased, who died on or about the 21st day of October 1859,
at Wilton, in the county of Wexford, made his last will and
testament, and a codicil thereto, bearing date, to wit, the said
will, on the 4th day of February 1858, and the said codicil, on
the 16th day of February 185^, but which said will and codicil
were not forthcoming at the death of said deceased, and which will
and codicil were 'respectively in the words and figures, and to the
purport and effect contained and expressed in two exhibits, deposited
by C. F. Johnson, solicitor, in the registry of this Court, on or about
the 19th day of January I860, and referred to in the affidavit of
said C. F. Johnson, filed in this Court on the 19th day of January
last, and entitled, * In the goods of John Newton, deceased,' and
therein described as the drafts respectively of said will and codicil ;
and which sc^id will and codicil were respectively reduced into writing,
and sign^ by said testator in the presence of two witnesses, present
at the same time, and who subscribed the same in the presence of
said testator, and of each other ; and the said testator was, at the
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time of the execution of the said will and codicil respectively, of
perfect sound mind, memory and understanding, and which said will
and codicil were by said testator afterwards in his lifetime destroyed,
with the design not of absolutely revoking same, but with the design
of thereby giving effect to a certain other testamentary instrument,
namely, a will, dated the 11th day of January 1859; and which
object and intention of said testator having failed, by reason that such
other testamentary instrument had been itself revoked, and become
inoperative, the said will, dated the 4th day of February 1858, and
codicil, dated the 16th day of February 1859> are unrevoked, and in
full force and virtue ; and in which will of the 4th day of February
1858 the said Philip Charles Newton is named as a devisee and
legatee, and of which will said testator named William Forbes
Johnson and Arthur Fitzmaurice executors." To this the appellant
pleaded, and says that the will and codicil, in the declaration men-
tioned to bear date respectively the 4th of February 1858 and 16th
of February 1859) formed the last will and testament of the deceased,
and that the said will and codicil were, and each of them was,
destroyed by the said deceased in his lifetime, with the intention of
revoking the same.
The defendant B. F. Bagenal, who was a minor, pleaded by his
guardian, that the will and codicil alleged b^ plaintiff were respect-
ively destroyed by said testator in his lifetime, with the ddsign and
intent of absolutely revoking and rendering null and void the same
will and codicil respectively ; and that the true last will of said
deceased testator was the will of the 11th day of January 1859.
In April 1860, the intervenient, Thomasine Jane Roberts, by leave
of the Court, pleaded that the said will of the 4th of February 1858,
and said codicil of the 16th of February 1859, were not forthcoming,
and, if destroyed by the said testator, were So destroyed by him with
the design, object and intention of giving effect to said will of the
Llth of January 1859; and that if the said design and object or
intention had failed or been defeated, by reason that such other,
testamentary instrument of the 11th of January 1859 had been
itself revoked and become inoperative, the said Thomasine Jane
Roberts insisted that the will of the 4th of February 1858, and
1860.
Ch, Appeal.
NEWTOH
V,
NEWTON.
Statement.
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244
CHANCERY REPORTS.
1860.
Ch, Appeal,
NEWTON
V.
NEWTON.
Statement,
codicil of the 1 6th of February 1 859i were unrevoked, and in foil
force and virtue, and the said Thomasine Jane Roberts a devisee or
legatee named in said last mentioned will ; but that, if said will of
the 4th of February 1858, and codicil of the 16th of February 1859,
were not in full force and effect, that said codicil or testamentary
instrument of the 7th of February 1859 was in full force, and the
said T. J. Roberts a devisee and legatee in the same.
In April 1860, the cause was set down for hearing before the
Court of Probate, upon affidavits. In May I860, the defendant
B. F. Bagenal obtained leave of the Court to file further pleas, and,
accordingly, pleaded, first, that the will bearing date the 11th of
January 1859 was revoked, but was still the last will of deceased;
and that the alleged codicil of the 16th of February 1859 was not
the true last will and testament ^of said deceased, nor a codicil
thereto, nor to any other will of deceased ; for that deceased never
executed said alleged codicil, knowing the contents and purport
thereof, and with the intent that same should be his last will and
testament, or any part thereof, or any codicil thereto; and that,
if same was ever signed by him, still it was so signed by him in
ignorance of the contents thereof, and without any intention that
the same should be his last will and testament, or any part thereof,
or any codicil thereto, or that same should revoke any will or
bequest of his ; and that it was so signed, being substituted by the
solicitor of said deceased for and instead of an instrument of said
deceased, intended to be of a different import and effect, which said
deceased did intend to sign, and in fact supposed he was signing, when
he erroneously put his name to said alleged codicil, contrary to his
intention : and, secondly, that the will of the 1 1 th of January 1 859 was
the last will and testament of said deceased, and was still unrevoked,
and that the said alleged codicil of the 16th of February 1859 did
not revoke same ; for that, on the last mentioned day, said deceased
being displeased with P. C. Newton, because of his then intending
to contract a certain marriage, and said will being at that time the
will and testament of deceased, he (said deceased) directed C. F.
Johnson to draw up a codicil conditional upon, and in reference to,
^aid marriage, in case same should take effect, and not otherwise^
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CHANCERY REPORTS. 245
and as a codicil, or in the nature of a codcil to his then last will ; 1860.
but he did not direct that the same should refer to or set up any _J^ ^^3'
will dated the 4th of February 1858 ; and, therefore, the said C. F. ^^"^^^^
Johnson, without instructions from, or knowledge of, deceased, and newton.
without the words hereafter mentioned being directed to be inserted stattment.
therein, or being read by said deceased after insertion, added to and
inserted in said paper or codicil the words following, that is to say,
'bearing date on or about the 4th day of February 1858,' 'and to
the residue of my personal property out of the same land,' ' and per-
sonal ; ' ' especially that part of it whereby ; ' ' and which bequest I
hereby repeat and re-affirm ; ' and the said C. F. Johnson after-
wards, by representing to said deceased that said alleged codicil,
with said words so introduced (but without informing deceased of
such words having been introduced), was framed according to his
instructions, and without deceased having read same, or being aware
thereof, or of the purport or effect of said paper or codicil, and with-
out intending to revoke said last will, or any part thereof, except in
the event of the solemnisation of said intended marriage, which
never was solemnised, procured the signature of said deceased to
said paper or codicil, and which paper or. codicil was afterwards
destroyed by said deceased, with the intent of rendering same
wholly inoperative for any purpose. Wherefore defendant eaith
that said paper or codicil, so far as regards said words, so inserted
as aforesaid, is not a will or codicil of deceased ; and said deceased
never intended that said words should form part of said paper or
codicil, or of any other will or codicil of said deceased, and said
words ought to be expunged therefrom; and that said will never
was revoked by said deceased by said paper or codicil, or otherwise,
but is now his true last will and testament."
On the 15th of May 1860, the appellant applied to the Court by
motion, that the further pleas of B. F. Bagenal might be set aside,
or reformed, as in the notice of motion mentioned ; whereupon, on
the 22nd day of May I860, it was ordered that the said order, bear-
ing date the 8th day of May I860, should be discharged, and that
the said pleas, filed by said Beanchamp Frederick Bagenal, on the
8th of May 1860, should be set aside, and that the costs of said order,
bearinir date the 8th day of May 1860, and of said pleas, should
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CHANCERY REPORTS.
1860.
Ch, Appeal.
Statment.
be costs in the cause ; and it was thereby further ordered that
the following questions be tried by a special jury of the city of
Dublin, before the Court itself; viz., First; ''Whether the paper
writing marked ' A/ and in the plaintiff's declaration mentioned,
or any and what parts or part thereof, are or is a true copy
of a codicil in said declaration alleged to bear date on the l6th
of February 1869, and tO' have been made by John Newton,
deceased, the deceased in this cause, and not now forthcoming,
and to be a codicil to a certain will, in said declaration also alleged
to have been made by said John Newton, deceased, and not now
forthcoming, and bearing date the 4th of February 1856; and, if so,
whether such alleged codicil, bearing date the 16th of February
1859, and said alleged will, bearing date the 4th of February
1858, were together, at any time, the last will and testament
of John Newton, deceased ? "
Second ; '* Supposing the said alleged codicil, bearing date the
16th of February 1859, or any parts or part thereof, and said
alleged will, bearing date the 4th of February 1858, to have
been together, at any time, the last will and testament of John
Newton, deceased, were the said will and codicil subsequently
revoked by the said John Newton?"
From this order the present appeal was brought by the heir-
at-law of Mr. John Newton.
Mr. Serjeant Lawson, and Mr. Brewster ^ with them Mr. Charles
ShaWy for the appeal.
Argument. There is no use in sending to the jury questions of law. If it be
admitted that the document produced is really a copy of the codicil
of the 16th of February 1859, that codicil, of necessity, sets up the
will of the 4th of February 1858, thus revoking the subsequent
will. No evidence is admissible to show that Mr. John Newton
had an intention different from the legal effect of his act. Since
the Wills Act, 7 W. 4, and 1 Vic. c. 27, no evidence is admissible
of an intention to revive a revoked will, save by the re-execution
of it. Nothing, in fact, is to be decided in this case, except a
question of law. If the Judge required further evidence, he ought
to have obtained it under tiie 36th section of the Probate Act.
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There is no evidence before the Coart to raise any doubt upon
the state of facts.
Mr. BaUersby, Mr. E. Johnston, Mr. J. T. Ball, Mr. J. E.
Walsh, Mr. Lloyd, and Mr. Litton, contra.
The policy of the Probate Act is to have questions of fact deter-
mined by a jury. Here there are several questions of fact ; one,
whether the writing produced is a copy of the alleged codicil;
another, whether the testator was aware of the effect of the codicil,
or of his revocation of it ; again, whether he intended to revoke the
will: Steward v. Snow (a) i Perrott v. Perrott{b)i Patten v.
Poulton{e)\ Onions v. Tyrer {d) ; Goodright v. Glazier (e);
Walpole V. Cholmondely (f) ; Kirke v . Kirke {g) ; Short d. Gas-
trell V. Smith {k) ; Locke v. James (t) ; Payne v. Trappes (k) ; Be
De Bode (/) ; Be Applebee (m).
1860.
Ch, AppedL
^— — V '
NEWTON
V.
NEWTON.
Argument.
The LoBD ChanceIlor.
This case comes before the Court upon an appeal from an order
made by the Judge of the Court of Probate, by which he directs that
certain issues shall be tried before himself and a jury. These issues
relate to the will of the late Mr. John Newton, and beyond doubt
they involve two questions of fact; that is to say, first; "Whether
the paper writing marked 'A,' or any and what part or parts
thereof, are or is a true copy of a codicil alleged to bear date on
the 16th of February 18599 ^^^ to have been made by John
Newton deceased, and not now forthcoming; and if so, whether
sach alleged codicil and the alleged will, bearing date the 4th
of February 1858, were together at any time the last will and
testament of John Newton deceased ? ^ Second ; " Supposing the
(a) 1 Mil. 626. (6) U East, 440.
(0 4Jiir., N. S.,84l.
(<f) 1 P. Wmi. 343 i S. C, Prec Ch. 459.
(«) 4 Burr. 2512. (J) 7 T. R. 138.
{g) 4 Bum. 435. (A) 4 East, 419.
(0 11 M. & W. 901. (Jk) 5 N. C. 152.
(0 5 N. C. 189. (m) 1 Hog. 143.
Nov. 9.
Judgment.
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CHANCERY REPORTS.
1860.
Ch, Appeal.
NEWTON
V.
NEWTON.
Judgment,
said alleged codicil and will to have been together, at any time, the
last will and testament of said John Newton deceased, were the
said will and codicil subsequently revoked by the said John
Newton?" Now, on the face of these issues, they are plain
ordinary questions of fact, arising, and obviously arising, out of
the proceeding before the Court; bec^iuse that proceeding was in-
stituted for the purpose of deciding whether these documents,
or any others, constituted the will of Mr. Newton. The Judge
of the Court of Probate, on examination of the evidence before
him, which consisted mainly of two affidavits, and on inspection
oft the various wills executed by Mr. Newton, thought it was a
case in which he ought to have the assistance of a jury in com-
ing to a final opinion on the facts. As I have stated, this appeal
is brought from his order directing these issues to be tried, and,
on this ground, that in point of fact there was no question what-
ever to be tried; or that if there were one, it was one which
ought not to be tried on an issue ; but that it was the duty of
the Judge to have decided the case, either on the evidence be-
fore him, or in a proceeding under the d6th section of the 20
and 21 Ftc, c. 79; that he ought to have dealt with the case
in one or other of these modes, and thus determined it, either
upon mere affidavits and the documentary evidence before him,
or upon the examination, and, of course, cross-examination of
the witnesses taken before him in open Court, in pursuance of
that 36th section.
Both of these propositions, however, amount to the same thing ;
that is, that there are questions in the case which are to be tried
in some form, and further, that these questions are questions of fact,
namely, whether in point of fact the codicil of 1859, and the will
of 1 858, made the last will of Mr. Newton ? and whether these were
afterwards revoked ? These are questions of fact arising out of the
proceedings in this suit. That being so, and there being these
questions arising, and necessarily arising out of the proceedings,
the 41st section of the Probate Act declares, that "It shall be
lawful for the Court of Probate to cause any question of fact,
arising in any suit or proceeding under this Act, to be tried
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CHANCERY REPORTS. 249
by a special or common jury before the Court itself, or by means 1860.
Ch, Appeal.
of an issue to be directed to any of the Superior Courts of Com-
mon Law."
The Judge then is invested with the power of trying issues
before a jury; and here, upon inspection of the documents, and Judgment,
having regard to the very peculiar circumstances of the case,
and its great novelty, especially considering the number of in-
struments executed, he has thought it the safest course to call
for a jury, and have the witnesses examined before it. But the
appellant then says the question is not one of fact at all ; it is
purely a question of law which is to be tried, namely, whether,
having regard to the evidence, even supposing it to be at all
admissible, there is anything which would amount to a confir-
mation of a previous will? or whether the evidence is a mere
nullity in the case ? Again, as to the revocation of these instru-
ments, it is said that this also is a question of law, or at all
events that there is not any question of fact; that the document
has not been found; that it has been traced into the testator's
possession; that its absence cannot be accounted for, and there-
fore that a presumption of fact arises that it has been destroyed.
Now, first, let me ask if we can assume here that such questions
of law would be at all tried by the jury, or that the Judge
would not tell the jury the conclusion which it would be proper
for them to draw, from whatever state of facts should be proved ?
That observation applies to both issues ; both may be mere questions
of fact, or may turn out to be questions of fact and law mixed, so
that the consideration of both must go together ; and there might
be great inconvenience in having such questions left to a jury:
but it does not go before a jury alone, it goes before a jury
and a Judge who will direct the jury, and we must assume that
' every proper direction will be given. If there be any error in
the mode of leaving the case to the jury, we have before us
several gentlemen of great ability who practise in the Court of
Probate, and we have no doubt the proceedings will be narrowly
-watched, and will be put into a shape which will give an oppcurtu-
nity of correcting any mistake.
VOL. 11. 32
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250 CHANCERY REPORTS.
I860. Under these circumstances, are we, at this stage of the case, to
.J^^J^^ say that it is not in the power of the Judge of the Court of Probate
NEWTON ^ ^^^^ ^^^^ j^^ would prefer having the case investigated before
NEWTON, himself and a jury? In my mind, such a case is better disposed of do.
Judgment, ^ ^^ °^^ ^V ^*^ ^^^''^ ^^^ ^^^ ^ something which, in one view of
the case, might appear to make it premature now to direct an issue.
It may be that it would have been better to have had the exami-
nation of witnesses, and then to have the issue framed according
to whatever might appear to be the difficulty. Where, however,
the questions in issue respect matters of fact, are we to interpose,
and say that they are to be tried in one way only ? When it is
said that there is a mixed question of law and fact, we must re-
collect that, were it not for this new tribunal, the question respect-
ing the real estate which is in litigation must have been decided
by a jury on a much wider issue, consisting only of a few words,
if an issue was directed from this Court, or without anything
whatever on record to point to the true question, if it were tried
in an ejectment.
I do not now go into the question whether it will be possible
to give evidence respecting the alleged mistake, or tending to
show that the testator thought he wan doing one thing when he
did another ; but at all events the question of mistake, if it arises
at all, is a question for a jury: Raworih v. Marriott (a). Then
it is said that there was a plain revocation here by destruction,
which must be presumed. From the earliest times, however,
the animus f the intention with which a testamentary instrument
was destroyed,, has been always held to be a question of fact.
Whether it was to be decided on contemporaneous acts and decla-
rations, or whether it was competent to go into evidence of subse-
quent declarations, I do not give any present opinion. But as to
(he nature of the alleged mistake, it must be remembered that
Perrott v. Perrott (b) shows that the doctrine is not necessarily
confined to a mistake in fact, but that a mistake in law also
may render the effect of cancellation questionable.
On the whole case, therefore, we must affirm this order, seeing
that there are questions of fact arising on the face of the proceed-
(fl) 1 M. &. K, 648. (6) 14 East, 440.
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ibgs, and that it would be very embarrassiDg to the working of the
Court of Probate if an appeal lay from the Judge, merely because
he preferred to have an investigation in limine before himself and
a jury, and we were thus to deprive" the Court of the discretion
conferred on it, and to say, you must proceed under the 36th
section, you cannot proceed under the 41st. We give no opinion
as to the ulterior questions; we merely decide on the conduct of
the trial, and we reserve all other points. It may be that, when
the case comes to a further hearing, other questions will arise;
but at present we think that we ought not to take the manage-
ment of the case away from the Judge to whom it properly
belongs.
1860.
Ch, AppeaL
NEWTON
V,
NEWTON.
Judgment.
The LoKD Justice of Appeal.
I quite concur with my Lobd Chancellor in the view he has
taken of the case, and in every observation be has made upon it.
The order appealed from was objected to on several grounds, im-
pugning the power of the Court of Probate to submit to a jury the
subjects of the issues it has directed ; but, on a due consideration
of them, I think the object of these issues is the ascertainment of
matters of fact, which, on an issue devisavii vel non^ would be ex-
aminable by a jury. They are, whether a copy of the codicil of the
16th of February 1859 be a true copy of it? Whether that codicil,
with the will of the 4th of February 1858, which it refers to, were
the will of John Newton,, at any time ; and if they were, whether
they were revoked ?
Every one of these inquiries, and the* answers to them, are mate-
rial ; nor can I accede to the objection that any of them transfers to
the juiy matters of law, or can give them a greater latitude than
that with which the law has invested juries in trying the due exe-
cution of wills of real estate.
On such trials, questions constantly arise in which the conclu-
sions to be formed must be the result not only of the evidence of
matters of fact, but also of the legal principles which it is the
exclusive duty and province of the Judge to state for their govern-
ment and their duty to observe ; and there is, perhaps, no subject on
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CHANCERY REPORTS.
1860.
^A. AppeaL
y , '
HBWTOK
V.
NfiWTON.
Judgment,
which the assiatance and control of the Judge is so indispensible as
issues involving the revocation of testamentary instruments. Should
a jury exceed the limits prescribed to them, and assume a right to
disregard the law as propounded to them, they will in this, as they
would be in all similar instances, controlled and corrected. But we
cannot presume, much less act on, the presumption that they will
exceed their province; and we may rest assured that they will
receive from the learned Judge such assistance as will enable them
to fulfil their own peculiar duty, without encroaching on his.
It did occur to me, during the argument, that we should have
had better, at least more specific, grounds for the consideration of
the order, had the case been more fully investigated, and a cross-
examination been had of the witnesses, especially of Mr. Johnson.
But, considering that this was a case of an alleged disposition of
real property, by testamentary instruments, and that the Judge
deemed the assistance of a jury to be of importance, I cannot see
how it is possible to question his jurisdiction to make the order, or
control his discretion as to the time or stage of the proceedinga at
which it should be made.
Court of Appeal Hearing Book 1, /• 384.
Nov. 7, 8.
RICHARD JAMES LONG*
V,
HILL GILLMAN LONG, MARY ANNE FAIRTLOUGH,
The Rev. EDWARD FAIRTLOUGH, EDWARD CONNOLLY
and JOHN HOPKINS.
In 1806, L., This case came before the Court on a petition of appeal from an
a 1^ for lives order of the Master of the Rolls, dated the 9th of June 1860, by
conyovdd it to
his ddest son J. for lifo, with remainder to X, the eldest son of J. In 1813, L.
acqoiied the reversion of the renewable lease, and in 1822 conveyed the reversion
* Coram the Lobd Cbancbllob and the Lord Jvstice or Appbal.
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253
which the petition was dismissed with costs, ifnder the circumstances
following: — By an indenture, dated the 11th of March 1781, Wil-
liam Tonson demised to Daniel Callaghan the lands of Shanavagh —
[See 10 Ir. Chan. Rep^y p, 406] — for three lives, with a covenant for
perpetual renewal, on payment of a fine of £6 ; and Daniel Callaghan
thereby covenanted to pay the renewal fine within twelve months after
the death of each life, and in default to pay a penalty of five shillings
like currency per month. The reversion in fee of the said premises,
afterwards, and at the date of the renewals, next stated, was vested
in William Lord Riversdale, and the lease in Richard Long, great-
grandfather of the petitioner. By indenture, dated the 1st of
August 1801, Lord Riversdale granted to the said Richard Long a
renewal of said lease of 1781 ; and by indenture, dated the 19th of
April 1808, a further renewal of the said lease of 1781, for the lives
of William Swanton, Catherine Swanton and Robert Swanton. In
1809, the lessee's interest, under the lease and renewals, was con-
veyed to the use of James Long, grandfather of the petitioner, for
life, with remainder to the use of his only son, Richard James Long,
the father of the petitioner, quasi in fee ; the said James Long died
in the year 1815, and the said Richard James Long, his only son, in
1862. The reversion on the lease and renewal, in the year 1813,
became vested in the said Richard Long, who, by indenture, dated
the 3rd of August 1822, conveyed the said reversion to Richard
Long his son, in fee. Richard Long the son, in or about the year
1833, died intestate and without issue, and thereupon the said
reversion vested in George, his eldest brother of the whole blood, as
1860.
Ch, AppeaL
*— V ■ ■ '
LONG
V.
LONG.
StaUmeni^
to R., the eldest son of his second marriage. In 1854, H., the heir-at-law of B.,
filed a cause petition against the executrix of X, to recover arrears of the rent
against X's assets. As a defence to that suit, it was alleged that L. was insane
wnen lie executed the conveyance of 1822. Li May ]857» H. senred a notice on
Y, the heir of X, and also of L., calling on him to take out a renewal. To
tlds notice Y returned an answer, declining to take out a renewal till H.'s right
was established in the cause petition, but nominating lives to be inserted in the next
renewal, if H. should establish his right, and stating his readiness to pay into
Court the amount of the renewal fines, to the credit of the then pending petition.
In June 1857> the Master made an order establishing H/s right to the reyersion, as
gainst the executrix, which was a£9rmed on appeal, on the 11th of Januaiy 1858.
^ere were some fiuther proceedings in H.'s suit ap to November 1858. In
December 1858, Y tendered a renewal and fines to H., and filed a petition for
renewal in February 1859.— Held, that the tender was too late, and that the right
of a renewal was forfeited.
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CHANCESY REPORTS.
I860.
Ch, AppeaL
LONG
LONG.
StatemenL
heir-at-law, and^ on the death of George Long, descended on Hill
Gillman Long, his eldest son and heir-at-law. Richard Long, the
grantor in the deed of 1822, at the time of the execution thereof,
was odd and eccentric in his habits, and the petition alleged him to
have been unreasonable in his language, unsound in his mind, and
considered by many members of his family incapable of managing
his affairs or making a deed. He died some time in the year 1823,
leaving Richard James Long, the son of James Long, his grandson
and heir-at-law. The said Richard James Long was about twelve
years old at the time of the death of his grandfather, the said Richard
Long, the grantor, and alleged to have been ignorant of the deed, of
the circumstances which made that deed invalid or questionable, and of
his rights as against that deed ; but he paid the reserved rent to the
persons entitled, under the deed of 1822, until the year 1846, four-
teen years after he had attained his age. In that year, however, be
set up a claim to the reversion, and never afterwards paid any rent.
He died in the year 1852, leaving the petitioner his only son and
heir-at-law, having made his will, whereby he devised all his estate
in the said lands of Shavanagh to the use of the petitioner, who was
an infant at the time of the decease of his father, and did not attain
his age until the 18th of March 1857. During the lifetime of Richard
James Long, no proceedings ever were taken to enforce payment
of the rent reserved by the lease of 1781 ; but after his decease,
that is to say, in May 1853, George Long filed a cause petition,
claiming An arrear of rent as due to him by the said Richard James
Long, praying for the administration of his real and personal estate,
and naming as respondents therein, amongst other parties, the
petitioner and Ellen Long, the personal representative of the said
Richard James Long. The petitioner never appeared in the said
cause, nor was a guardian ad litem ever appointed for him therein.
George Long died in 1853, and the respondent Hill Gillman Long
revived the said cause petition. Ellen Long, as the personal
representative of Richard James Long, raised in the cause peti-
tion matter the question of the validity of the said deed of
August 1822, and litigated the right of Hill GiUman Long to the
said rent.
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In 1864, this cause petition having come on to be heard before
Master Littpn, Coansel on behalf of Ellen Long insisted that an
issue should be directed to try the sanity of Richard Long at the
time of the execution of the grant of 1822. The Master refused to
direct this issue ; and Ellen Long appealed from his order, which
was affirmed by the Master of the Rolls; on the 21st of November
1854 (a). Ellen Long subsequently adduced evidence to show the
insanity of Richard Long the grantor, at the time of the grant ;
but the Master, by his final order, dated the 16th of June 1867,
declined to direct an issue as to the sanity of Richard Long, and
declared the demand of Hill Gillman Long for the arrears of rent
well proved. By this order he determined the amount due for rent
to Hill Gillman Long, including the amount due up to the last gale
day, and directed the appointment of a receiver to raise the amount.
In order to avoid the appointment of a receiver, Mrs. Long brought
into Court the entire amount found due, and subsequently appealed
from the Master's order. On the 7th of November 1867> the Mas-
ter of the Rolls made an order, reciting that the question raised
before the Master would arise in the action which must be brought
to recover the rent accrued since the death of Richard James Long,
directed the further consideration of the case to be postponed till
the 3rd of Deceqiber 1867; and, in the event of an action being
brought on or before that day, it was ordered to stand over till judg-
ment should be obtained in that action. No action was brought, and,
on the 11th of January 1868, his Honor varied the Master's final
order, in relation to that portion of the rent which accrued due after
the death of Richard James Long, and affirmed the Master's order
in all other respects.
Subsequently an application was made to the Master, by Hill
Gillman Long, to have the entire amount paid out to him, which
had been brought in by Ellen Long ; and this application was
granted, upon the ground that the rent accrued after the death of
Richard James Long would bave been paid by the receiver, if one
had been appointed ; and that the fund having been brought in, to
1860.
Ch, Appeal.
Statement.
(a) See 4 Ir. Chan. Bep. 106.
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CHANCERY REPORTS.
1860.
Ch, Appeal.
— V— ^
LONG
9.
LONG.
Statement.
avoid the appointment of a receiver, must be treated as if it had been
ret^eived. by a receiver. From this order Ellen Long appealed ; but
it was affirmed by an order made by the Master of the Rolls in
November 1858.
The petitioner attained his age on the l8th of March 1857, before
the Master's final order in Hill Gillman Long's suit ; but during his
minority he had sought to obtain evidence on behalf of Mrs. Long,
had made an affidavit on her behalf, and, to some extent, acted as her
agent. Shortly afler his attaining his age, and in the month of May
1857, a notice, signed by the respondent Hill Gillman Long, was
served on the petitioner, directed to all persons concerned, requiring
them to renew the said lease, within two months, and pay the rent,
renewal and septennial fines. In reply the petitioner served the
following notice: —
*' SiBr— la reply to your notice, dated the 15th instant, I have
to say, first, that unless and until your right to the reversion,
rent and fines therein mentioned is established in the matter of
Ijong V. Long^ now pending in the Court of Chancery, I cannot
comply with your demand. Second; that I name the lives of Her
Royal Highness Louisa Caroline Alberta, His Royal Highness
Arthur William Patrick Albert, His Royal Highness Leopold
George Duncan Albert, three of the children of Her Majesty Queen
Victoria, as the cestui que vies to be named in the next renewal,
in case you shall establish your right to the said reversion.
Third ; that I am ready to pay all fines mentioned in your said
notice into the Court of Chancery, to the credit of the said
matter of Long v. Long, or to trustees to be for that purpose
nominated. Fourth; I require you to inform me of the amount
of fines claimed by you to be due. Fifth ; this notice is not to
prejudice the proceedings in Long v. Long.
*' Dated this 30th day of May 1857.
" R. J. Long."
" To Hill G. Long, Esq."
To this the respondent did not reply ; and after the appeal motion
in November 1858 was decided against Ellen Long, the petitioner.
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on the 30th of November 1858, aeryed on the respondent Hill Gill-
man Long a notice referring to the notice of the 30th of May 1857,
and requesting him to furnish particolars of the fines, interest,
septennial fines and rent ; to which the respondent did not reply,
sETe by saying to the person who served it that he would not renew.
In December 1858, the petitioner caused a tender to be made
to said respondent of a draft renewal and rent and fines, which
he refused to accept; and the petition was filed on the 7tb
of February 1859, praying a renewal of the lease of 1781. Hill
Gillman Long answered the petition on the 28th of March 1859.
The cause came on to be heard on pleadings and proofs, on the
24th of November 1859, before the Master of the Rolls, when his
Honor was pleased io order that the further hearing of said cause
should stand over, and that the said petition should be amended, by
making Mr. and Mrs. Fairtlough and their trustees parties. This
amendment was made on the 4th of January 1860; and the peti-
tion matter having been finally heard before his Honor the Master
of the Rolls, on the 9th of June I860, his Honor made a decree,
dismissing the said petition with costs, to be paid by petitioner to
said respondents Hill Oillman Long, the Rev. Edward Fairtlough
and Mary Annd his wife.
From this decisiott the present appeal was brought^
1860.
Ch. Appeal,
SiMmmU.
The AUormy-Gmwrttt^ Mr. Serjeant Smllivan^ Mf. R, R. Wmrrm
and Mr. Exha$t^ for the appellant.
The controversy in the cause of Limg t. Long was a fair and Argummu.
bona fide controversy, as to whether or not Richard Long, the
giasCOi in said deed of 1822, waa of unsound mtnd when he
executed same, and pending said controversy, which was raised by
petitioner's mother when the petitioner was a minor, and not a
party to the cause. It was not reasonable to require him to take out a
renewal from a person whose right and title to grant it was dis-
puted, and when, if such controversy was decided in iavoor of the
petitioner's motiier^ he would have been himself entitled to the
ksscnr's and lessee's interest in said original lease. The service of
the notice to renew was not done for the purpose of compiling the
VOL. 11. 38
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CHANCERY REPORTS.
1860.
Ch, Appeal,
Argument.
pajrment of fines, but of inducing the petitioner to acknowledge the
respondent's title, and thus, in effect, to put an end to the question
raised in the cause of Long r. Long. The service of a notice under
the Tenantry Act must not be made for an indirect purpose. The
notice of the 30th of May 1857 was a fair notice on the petitioner's
behalf, and all fair terms were offered by it, and the petitioner
offered to renew, and tendered the draft renewal and all rent and
fines, within a reasonable time after the said question in contro-
versy in said cause of Long v. Long had been decided in the
respondent's favour. Tho time tor renewal did not begin to run till
after the decision in Hill Gillman Long's suit. A tenant, bona fide
believing himself to be entitled to the reversion on his lease, is
not bound to sacrifice his reversionary interest. The old principle of
feudal law, forfeiting a tenant's interest for claiming the reversion,
does not apply here, for it never was a principle of this Court; and
even if it were, there was not any disclaimer on record. If there
were two adverse claimants of the reversion, surely liie tenant would
be entitled to require them to decide which was entitled, before
incurring a forfeiture, by omitting to renew ; does it make any
difference that the tenant himself is one of the claimants? The
petitioner has not been guilty of any fraudulent conduct, or any such
laches, as should disentitle him from obtaining the renewal sought
by the petition. His delay is fully and fairly accounted for ; the
former suit of Long v. Long did not terminate till November 1858.
Up to that time it seemed necessary for Hill Gillman Long to take
some steps to establish the sanity of the grantor in the deed of 1822.
Mr. Brewster, with him Mr. Serjeant Lawson and Mr. O^Bwr-
dan^ for Hill Gillman Long.
Even if a tenant can, after service ti a notice to renew, dispute
his landlord's title, without forfeiting his right of renewal, which
would be a difficult proposition to maintain, there has been in this
case undue delay in seeking for a renewal. The petitioner, by his
own notice o^ the 30th of May 1857, staked his right to the rever-
sion on liie event of Hill Gillman Long's suit ; and he was bound
to be active in seeking for a renewal as soon as that was determined.
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That suit was successful on the 11th of January 1858, yet the peti-^
tion here was not filed for more than a year afterwards. The sub-
sequent proceedings in that former suit had nothing to do with the
determination of the right of Hill Gillman Long, which was fully
established on the 11th of January 1858. There was very great
delay after the service of the notice of 1857, and the only excuse
made for it is in itself a breach of duty on the part of the petitioner.
In truth, the whole conduct of the petitioner was fraudulent, for he
was the real actor in the former suit of Hill Gillman Long, and the
defence of Ellen Long was in truth and substance his.
1860.
Ch. Appeal
LONG
V.
LONG.
ArgHMent.
*Mr. ChaUerton and Mr. J. P. Kennsdy^ for the respondents
Fairtlough and wife, and their trustees, were stopped by the Court.
The following cases were mentioned and discussed in the course
of the argument: McDonnell v. Burnett (a) i Jackson v. Saun^
ders(b); Doe d. Phipps v. Rolling {e) ; Burton v. Fitzsimon (d) ;
Woody. Knox{e)i Butler v. Portarlington (fj ; Fitzgerald v.
(yConnell(g) ; Wallace v. Patton (A).
The LoBD Chan CBLLOR.
In this case, which has been heard before us at considerable
length — a length, however, for which no apology need be made,
I must say that I never have heard facts or arguments pressed
more earnestly ; but, on the whole case before us, #e are of
opinion that we ought not to disturb the order made by his
Honor the Master of the Rolls. The case has been very much
narrowed in argument, and has, I may say, come to a single point ;
and upon that point the Master of the Rolls decided that an
unreasonable time has elapsed Since a demand to renew was made
upon the tenant, by a notice within the provisions of the Tenantry
(a) 4 Lr. EqrBep. 216. (6) 1 Sch. & Lef. 455.
(c) 4 Com. B. 188. (d) Fin. Ben. 312.
(e) 3 Ir. Chan.Bep. 109. (/) 1 D. & War. 20.
(y) IJ. & L. 134; S. C, 6 Lr. £q. Bep. 455.
(A) 1 It. Eq. Bep. 338.
N<w. 8.
Judgment.
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CHANCERY REPORTS.
1860.
Ch. Appeal
LONG
9.
LONG.
Judgment,
he shoald still retain a right to the benefits of the relation he had
disclaimed. I will not assert that such a case may not exist. I can
only say that I have been unable to discover that any sach case has
ever occurred. I do not think that the present calls for a decision
of the abstract point, when one considers the real and important
facts in the case, which I shall now detail : — The notice was served
in May 1857 ; the answer to it, which is one of the most material
documents in the case, is as follows : — '* Sib — ^In reply to your notice
dated the 15th instant, I have to say, jfirst, that unless and until
your right to the reversion, rent and fines therein mentioned is
established in the matter of Long v. Long^ now pending in the
Court of Chancery, I cannot comply with your demand." Now, in
the first place, that puts the petitioner in entire privity, as between
him and the respondent, with the then pending cause of Long v.
Long. By that first paragraph he puts himself in the position of a
person who, pro bono et maioj takes with that, and says he will
abide by the decision in.it '<If it be determined in my favour, there
is an end of all question between us ; I am entitled to hold the land
in fee-simple ; but, if it be decided in your favour, then I will com-
ply with your demand." What was that demand ? It was a notice
requiring the payment of the fines within the space of two months.
Now there is no allegation that two months did not afford time
enough to ascertain the amount ; that is not the case now made, and
it would be unfounded if it were attempted. The petitioner says
simply that he will comply with the respondent's demand, whenever
Long V. Long may be decided, if such decision show that he is
bound so to do.
The next clause of this document takes up a position which may
be good, or may be bad, according as the events may happen, by
naming the lives whom he wishes to have inserted in the lease, in
case it is to be granted ; and he then alleges that he is ready to pay
all fines into the Court of Chancery to the credit of the matter of
Long v. Long: but he only says he is ready; he has made no
attempt, by motion or otherwise, to carry out that readiness ; and
then requires to be informed of the amount of fines claimed to be
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CHANCilRY REPORTS.
263
due, as to which there is do i>reteDce for asserting that he was really
ignorant, and condades by saying that the notice was not to preju-
dice the proceedings in Long v. Long. It is impossible to read that
notice without perceiving that it put the petitioner in entire privity
with the former case of lA)ng v. Long^ and that he undertakes to
abide by whatever shall be there determined in that suit about the
right, not merely as to some particular gale of rent. When then was
that right determined in that suit ? Beyond all doubt it was deter-
mined on the llth of January 1858. It is said that something still
remained to be done ; but it was merely consequential relief flowing
from the other decision. It was merely a technical question which
remained to be discussed ; that is, whether, in that suit, the peti-
tioner could recover arrears of rent which accrued due after the
testator's decease ; so that the subsequent contest was purely techni-
cal, while the general right had been decided before. But the
petitioner was not yet contented or prepared to abide by the decision
in Long v. Long; and he continued to refuse payment. Even here
it was argued that the intention of that contest was to put the
respondent to an ejectment, or a Common Law action to recover
those arrears — in point of fact to compel him to raise every question
which had been decided in Long v. Long^ the cause by the result of
which the petitioner had in his notice undertaken to abide. Under
these circumstances, it appears to me that the litigation, after the
llth of January 1858, was not bona fide; that, whatever the char-
acter of that litigation may previously have been, there was no
sound reason for delay after that date, and that the decision of the
Master of the Rolls was consequently right, and must be affirmed.
I860.
Ch, Appeal,
LONG
LONG.
Judgwkent.
The Lord Justice of Appeal.
I entirely concur with my Lord Chahcellob in the opinion
that the petition of appeal in this case must be refused. It is unne-
cessary for me to go through the facts of the case, which have been
already so fully stated. I shall shortly state the ground of my opi-
nion, that the decree of the Master of the Rolls was right. In a suit
of this kind, for the speciflc execution of a covenant for perpetual
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CHANCERY REPORTS.
186a
Ch. Appeal
renewal, the right must be groiinded on an admission of the title of
the defendant. The claim of the tenant can onlj be based on the
fall power of the landlord to grant the estate sought for. It is,
therefore, indispensably necessary for the tenant to admit the land-
lord's title in its entirety, and in the most unequivocal manner. He
cannot, in such a suit, contest a' right on the admission of which his
own is wholly founded. It would be, in my opinion, a plain viola-
tion of this pnnciple to allow him to allege or plead as a justification
in excuse for the delay, in its nature fatal to his case, a litigation in
which he had unjustly and unsuccessfully contested the very title
the admission of which is the indisputable condition of the relief he
seeks for.
Court of Appeal Hearing Book^ 1,/. 383. .
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CHANCEBY REPORTS. 265
1860.
CkoMenf*
KNOX tr. MAYO.
(In Chancery).
Nw. 14.
This case came before the Court on a return to a writ of partition, The respond-
ent in a pftrti-
and the further directions reserved on the former hearing, at which tion suit
costs also were reserved. The case is reported supra^ vol 7, p. 563. petitioner's
daim, alleging
that the peti-
Mr. Henry H. Hamilton and Mr. Carleton, for the petitioner, ^^^"^y
contended that the respondent, Lord Majo, ought to pay to the PJ^^^ ^^ ^^
petitioner the costs occasioned by his having disputed the peti- ^^^ Conn.
derahle ex-
tioner's title. The respondent had occasioned considerable additional penM was thos
imposed on
expense at the hearing, and in the preparation of the case. In the the petitioner;
* but that ex-
Court of Appeal, the costs of the appeal had been awarded against pense was en-
Lord Mayo. It was settled that a respondent who litigated the before and at
petitioner's title in a partition suit might be compelled to pay the -jA^ ^^ ^^
costo occasioned by such litigation: Lyne v. Lyne(a)i Hill v. pa,!^^^ ^
Fullbrooke (b) ; Morris v. Timmin* (c). St^l2S^^"
and costs re-
serred. At the
Mr. Serjeant Lawson and Mr. Todd^ contra. hearing on the
retnm to the
The rule respecting costs in a partition suit is well settled. Each writ of partis
tition and far-
party must bear his own costs up to the first hearing, and the subse- ther directions
qnent costs must be borne rateably. The cases cited only show that the petitioner
any expense not a portion of the costs of preparing for the first hear- ^^ ^ y^ ^l^
ing, occasioned by one of the parties, may be thrown upon him. In ^^ ^iljy^^
Lyne v. Lyne^ the defendant had insisted on having an inquiry ^|? ^^J!^^a
directed at the first hearing. In Morris v. Timmins. the case was including the
first hearing.
properly one of specific performance, and the xmrtition relief merely
Arguments
incidental In Hill v. Fullbrooke^ the costs which the defendant
was obliged to pay were 'those of an account directed at the first
(a) 21 Beay. 318. (6) Jac 574.
(c) 1 Beay. 411.
VOL.11. 34
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CHANCERY BBPORTS.
1860.
Chancery,
Argument
hearing, in consequence of his resisting the plaintiff's claim. Here»
the only additional costs subsequent to the first hearing were those
of the appeal, which we were directed to pay. Even if a case oonld
at all be made for giving extra costs to the petitioner, the direction
for so doing must be given at the first hearing, when the Judge has
all the facts before him.
Judgment. The LoBD ChavceiXob said that he saw no reason to depart
fi*om the usual rule as to costs in partition suits. Uader any cir-
cumstances the petitioner must have proved his title.
General Hearing Book^ 26, /. 288«
A judgment
reooyered in
1819, and
never revived
QOf re-do(diet-
ctd, must be
postponed not
onlj to the
gales of a
rentcharge
created by
the jnd^ent
debtor in
I827» and as-
signed in 1Q41,
whidi accmed
due after that
period, but to
the arrears of
it which were
then due, an4
wbich were
Included in the
assignment.
Statement.
WALCOTT tr. SMYTH-
This cause came before the Court upon exceptions taken by William
CDell to the Master's report, under a decree, dated the 21st of
November 1842, by which it was referred to him to take an accoonl
of the sums remaining due to the plaintifis on foot of their saveral
demands, and an account of the real and personal estate of William
Smyth, deceased, and of all charges and ineumbranoes affecting the
same. ^
The Master, by his report, filed on the 2nd of July 1860, found,,
amongst other things, that by deed, bearing date the 1st day of
August 1827, and made between the said William Smyth, of the
first part, John Walcott, of the second part, Samuel Walcott, of the
third part, Thomas Lyons Walcott, of the fourth part, and Edward
Wright Seymour, of the fifih part, the said William Smyth, in oon-
sideration of £950, granted unto the said Thomas Lyons Walcott an
annuity or yearly rentcharge of £120. 10s. 6d., charged upon the
lands in the decree mentioned, for the life of one Thomas Bramll,
and to be payable half-yearly, on the 24th day of June and the 24th
day of December ; and that thereby also a term of ninety-nine years
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CHANCERY REPORTS.
267
in the said lands was created and vested in Edward Wright Sej-
moor, for secaring the same. The Master also found that, by an
indenture, bearing date the 15th day of July 1841, and made
between Samuel Walcott, of the first part, W. H. L. Walcott, of
the second part, Mincbin Walcott, of the third part, Anne Walcott^
executrix of the said Thomas Lyons Walcott, of the fourth part,
and John Crossley Seymour, of the fifth part, in consideration of
£1250, the said annuity, and all arrears thereof, and a judgment
collateral thefewith, were assigned by Samuel Walcott and Anne
Walcott to John Crossley Seympur, by way of mortgage. And the
Master, by his report, also found that the said Thomas Brazill, the
cestui que vie of the annuity, died about the 24th of December 1841,
and that at his death £1113 remained due on foot of the annuity ;
£1053. Is. Id. due before the deed of July 1841, and £60 sub-
sequently. The Master further found that a judgment for £660,
obtained in Hilary Term 1819, against William Smyth, and vested
in the said William 0*Dell, not having been revived or re-docketed,
was the twenty-fourth charge on the lands, and should be postponed
to the arrears of annuity assigned in mortgage by the said deed of
the 15th of July 1641.
To this report William O^Dell filed several exceptions. The first ;
that tko judgment of Hilary Term 1819 should have been found to
be the third charge on the lands. The second; that the Mas-
ter should have reported that the annuity ceased on the death of
Thomas Brasill, and that the arrears thereof were a charge on the
lands only for the term of ninety-nine years, vested in Edward
Wright Seymour ; and that, inasmuch as said term was not assigned
by the deed of 1841, the judgment of Hilary Term 1819 was a
charge on the lands prior to the annuity, and to all other charges,
save No. I and No. 2. . The third ; that only the arrears of antiuity
which accrued due subsequent to the deed of July 1841 should have
been reported prior to the judgment of Hilary Term 1819. The
fourth; that, inasmuch as the deed of 1841 was executed /i«iu20ii/«
lite^ it could not operate to postpone the judgment of Hilary Term
1819.
The other exceptions were not material
1860.
Chancery*
Statement.
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CHANCERY REPORTS.
1860.
Chancery,
^ , f
WAI.COTT
O.
SMTTH.
Argument.
Mr. F. W. Walsh and Mr. PaUes^ in support of the exceptions.
The deed of 1841 cannot in this case give any higher right to
the assignee than the original annuitant had. It is true that, upon
another portion of this very deed, it was decided in WalcoU v. Con'
don (a), that a sub-mortgagee is entitled to the benefit of the Re-
docketing Act, although the original mortgagee may not be in a posi-
tion to set it up. This, however, is quite a different case. What was
de facto assigned here was not an estate or interest in the land,
but a mere right of suit for the arrears of annuity which had
then accrued due. It might have been very different if the term
had been assigned to secure the arrears; then there would have
been an estate in the land, but the arrears of a rentcharge can-
not be so described. Malcolms v. Charlesworth {h) goes further
than is required to support those exceptions ; for it shows that
an assignment of a legacy charged on land is not affected by the
English Registry Act; and though the applicabih'ty of that case
to the more stringent Registry Acts of this country has been
questioned, there seems no reason to believe that its authority is
shaken in England. Then the words of the Re-docketing Act
are not so strong as those of the Irish Registration Act ; and thus,
assuming WalcoU v. Condon to be law, the present case is quite
distinguishable. The annuity here was purchased pendents
Ikcj and can give no higher title than the assignor had: Hunter v.
Kennedy (c); Murtagh v. TisdaU{d)\ BenneU y. Bernard {e)v
Bellamy v. Sabine (f).
Judgment.
Mr. /?. R. Warren^ contra, was stopped by the Court, having
mentioned Low^s Estate {g).
The LoBO Chancbixor.
I think that Mr. Seymour is entitled to the benefit of the pro-
visions of the Re-docketing Act. The only question really is.
(a) 3 It. Chan. Bep. 1.
(c) 1 Ir. Chan. Bep. 148.
<«) 10 Ir. Eq. Bep. 584.
(6) 1 Eee. 65.
((Q 3 Ir. Eq. Bep. 85.
00 IDeG. &J. 566.
is) 4 Ir. Chan. Bep. 97.
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whether the arrears of the annuity can be said to be a right,
title, estate, or interest in Und ? and it would be very difficult to
assert that they cannot be so described. The case of Walcott v.
Condon (a) was decided by Lord Chancellor Blackbume on this
very deed of the 15th of July 1841, which comprised not only
the annuity of 1827> but a mortgage of 1825 ; and his Lordship
there held that Mr. Seymour was, as assignee of the mortgage,
entitled to the benefit of the Act, as between him and the judg*
ment creditor of the mortgagor, though Walcott, the immediate
mortgagee, would not have been. I cannot distinguish the pre-
sent case from Walcott v. Condon. Here there is the grant of a
rentcharge, a perfectly legal grant The arrears also remain a
legal demand upon the land, secured by the term, which, to be
sure, was not assigned by the deed ; but the trustee of the term
is trustee for the true< owner of the arrears, and, if the assignee
be the true owner, he is a trustee for him. I cannot distinguish
this from the case of the mortgage ; but Mr. O'Dell can, if so
advised, raise the general question by appeal. I think the Master^s
report right, and founded upon right principles ; and I must, there-
fore, overrule the exceptions, with costs.
(a) 3 Lr. Chaa. Bep. 1.
jReg. Lib., 26, /. 303.
1860.
JudgmmU.
ADAMS r. GAMBLE.
This case came before the Court upon a cause petition, and answer<»
ing affidavits, under the circumstances following.
By a lease dated the 1 0th of April 1791, the lands of Anticor
were demised to John Adams, for three lives renewable for even
John Adams made his will,, dated the 26th day of February 1799)
which contained the following devise : — *' I also leave and bequeath
to my daughter Isabella Adams the leases of all the lands which I
the. 3.
of
An estate
dMcendible
freehold, fet-
tled to the
leparate use
of a married
woman, can*
dot be TaUdly
convejed by
her without
fine or statote
deed.
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CHANCBRT REPORTS.
I860.
now ppsBeM, to her, to have and to hold, enjoy and possess, and to
her heirs and assigns for ever, reserving it in her own power from
any kosband or husbands which she shall marry or be married to.''.
John Adams died shortly after the date of his said will ; and in 1801
Isabella Adams intermarried with one James Gamble ; there was no
issue of that marriage ; and in 1842 Isabella Gamble died, leaving
her husband her surviving. By an indenture dated the 30th of
April 1822, and niade between Sarah Leslie of the one part, and
the said James Gamble and Isabella Adams his wife, of the other
part, the lease of the said lands of Anticor was renewed to the said
James Gamble and Isabella his wife, for three additional lives,^ to
hold the same to the use of the said Jaroes Gramble for life, and,
from and after bis decease, to the use of such person or persons as
the said Isabella should by deed or will appoint ; in default of ap-
pointment, to the use of the said Isabella, • her heirs and assigns.
By de^ dated the 23rd day of May 1835, and made between
the said) Isabella Adams, otherwise tjhim'ble, of the one part, and
thie said James Gamble of the other part, the said Isabella pro-
fessed to convey the lands of Anticor to the said James Gamble.
James Gamble died in 1858, having devised his interest in the
said lands to the respondent. The present petition was filed by
the heir-at-law of Isabella Adams, and prayed that the renewal to
James and Isabella Gamble might be declared a trust for him ;
and for a conveyance of the lands comprised in it.
Mr. J, E, Walsh and Mr. Harrison^ for the petitioner.
Argument, The only question in this case is respecting an estate of freehold,
settled to the separate use of a married woman, whether she can
dispose of it as if she were B,feme sole f The earliest case on the
subject is Churchill v. Dibben (a), where the question was as to
lands purchased by the wife with personal estate which was her
absolute separate property, and which she was held not to be able to
deal with as if she were a feme sole. The analogy of legal estates
was also applied in the case of Peacoch v. Moneh(6}. The readoa
(a) 2 Ken., pt 2, 85 ; S. C, 9 Sim. 447, n. (5) 2 Yes.
192.
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of the disUnolioQ between realty and personalty in this respect is,
that it js only the marital right of the husband which the separate
Qse is intended to exclude. It does not otherwise modify the nature
of the wife's property ; so she can dispose of chattel property, in which
only she herself and her husband are interested ; but in the case of
realty, the heir has a title which can only be defeated by fine or
statute deed. That is the scope of the old authorities, and they are
followed in the very reoent cases of Harris v. Moii (a) ; Neweomen v.
ffassard(b); Moore v. Morris (e). Lassence v. Tiemey{d)y and
Field y. Moore («), show that in no case will the law dispense with
the formalities imposed by statute on the disposal of an estate by a
married woman : Goodiil v. Bingham (f) ; Doe d. Siepkems v.
SeoU {g). If a woman has a separate estate, with an express power
in addition, she can dispose of the property by the aid of the power ;
but otherwise she cannot, if it be held for any greater interest than
her own life. Baggott v. Meux(h) only shows that a married
woman can have separate interest in fee-simple estate.
I860.
V-— V '
ADAMS
V.
OAKBLB.
ArgmmwU
Mr. Hugh Law and Mr. May^ contra.
It is now the settled law of this Court, that a woman, if not
expressly restrained from anticipation, can dispose of all property
settled to her separate use, as if she were a feme sole. That has
been constantly held here, from the decision of Grigby v. Cox (t),
and Pyhus v. Smith {k\ to the present time ; and Tulleti v. Arm^
strong has at last settled the doctrine respecting restrictions or
anticipations upon a rational and intelligible basis. Wilcox v.
Hannyngton (/) is an express decision on the power of a married
woman to bind her separate fee-simple estate, and is, therefore,
(a) 14 Beay. 169. (h) 4 Ir. Chan. Bep. 268.
(c) 4 Drew. 33. (rf) 2 H. & Tw. 115.
{€) 19 Beay. 134 ; S. C, 2 Jnr., N. S., 150.
09 I B. & P. 192.
{g) 4 Bing. 506; 8. C, 2 Moo. & P. 317.
<A) 1 CoU. 138 ; S. C. 1 PhiL 627- *
(0 1 Vw. sen. 517. (A) 1 Vo«. j^m. 195.
(0 5 Ie> Chan. Bsp. 38.
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CHANCERY REPORTS.
1860.
Chaneery>
Argument,
even a stronger case than the present, where the claimant b
merely a special occapant. Wright v. Cadogan (a), Rippon v.
Dawding{b)f are also express authorities for the respondent, the
devise of a woman seised of separate estate haying been established
against her heir: Major v. Lansleg{c). In Power ▼• Bailey {d)^
an annnitj granted by a married woman out of her separate estate
was established. Bagot v. Meux («) carries the respondent's case
the entire way ; for if it is necessary to insert a condition against
alienation in a settlement of real estate, and if it can have any effect,
what is the distinction between separate interest in realty and per-
sonalty? The distinction taken between realty and personalty is
unfounded. The Court of Equity regards the interest of the wife
more than that of the heir.
Dee. 3.
The Lord Chancellor.
The petition in this case has been filed in order to establish the
petitioner's right to certain lands, which were devised by John
Adams to his daughter Isabella Adams, *' to have, hold, enjoy
and possess, and to her heirs and assigns for ever, reserving
it in her own power from any husband or husbands whom she
should marry." The petitioner claims to be heir-at-law of Isabella
Adams. The respondent relies upon a deed executed by her during
her coverture ; and he submits that by this she had conveyed the
estate which she held in quasi fee; and that, consequently, the
heir is barred. Thus, the question has been raised, and discussed at
the hearing very fully, whether a married woman having property
in fee, settled to her separate use, but not subject to any special
power of appointment, could, by an instrument not acknowledged
under the statute, convey it so as to defeat her heir ? The petitioner
contends that, according to well established doctrines of law, she
could not do so. The respondent, on the other hand, says that
such never was the law, or that, if it ever was, the course of
modem decisions has been to the contrary.
(a) 1 B. P. C. 486. (b) Amb. 505.
(e) 2B.&M.365. (</) 1 B. &. B. 40.
(e) 1 CoU. 138; S. C, on Appeal, 1 Fh. 627.
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I have exaipined all the decisions, and I must say that I have
been unable to find any authority which affirms the proposition that
a married woman so circumstanced can dispose of the estate, other*
wise than by fine or statutory deed. The current of authorities
and opinions, as shown by the text-books and the dicta of Judges,
is almost uniformly to the contrary; and there is not even a dic-
tum of modern date in its favour. Tl\e first authority distinctly
in point is the anonymous case cited in Peacock v. JtfonA(a), and
it is almost an express decision on this case. It was a case in
which real estate of a wife was secured to her separate use by a
settlement executed before her marriage, which did not contain
any power of devising it; and it was determined that her will
was void as to this real estate, and that the estate must go to her
heir-at-law. The distinction is taken in Peacock v. Monkj that
she can dispose of an estate so limited, if she has also an ex-
press power given to her by the settlement, either by way of
trust, or of power over a use. In Churchill v. Dibben(b)^ it
was held that a married woman having real property settled to
her separate use, out of the savings of which she purchased other
real estate, which would of course be also held for her own sepa-
rate use, was. not entitled to dispose of this newly acquired
property. It seems to me that these authorities proceed on the
very point and decide it, unless they have themselves been over-
ruled by subsequent cases.
The doctrine of Courts of Equity, in relation to a wife's separate
estate, is founded on this, that they will protect the wife's separate
property from the power of the husband ; but the husband never
could dispose of the wife's fee-simple property without her concur-
rence, beyond his life interest ; and, therefore, the reason and
principle of the dicta and decisions respecting separate estate have
BO application to property of which the wife is seised in fee. That
reason and that principle are given with accuracy in Tullett ▼.
Armstrong (c) : — '* The estate for separate use, as sanctioned by
(a) 2 Ves. 192.
(6) 2 Lord Kenyon, pt. 2, p. 85; S. C, 9 Sim. 447, n.
(g) 1 Beav. 1 ; t;u(e p. 22.
VOL. 11. 35
1860.
Chancery,
' . '
ADAMS
r.
GAMBLE.
Judgment.
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CHANCERY REPORTS.
I860. Courts of Equity, has its peculiar existence only in the married
Chancery.
State. It operates as a protection to a married woman, agunst the
legal power over a wife's property, which is vested in her husband ;
it acts in contravention and control of the legal right of the hus-
'^udgmaii, htJi^ ; and, as against his legal power, it is a sufficient protection ;
but the power of alienation remaining in the wife, the separate
estate unfettered is no protection against the moral influence of the
husband." Now, it will be observed, that that passage has no
application to the destination of the property after the death of the
wife. Another case was referred to — Harris ▼• MoU{a\ which,
although not an express decision of the point, goes in the same
direction ; it was the case of an estate in fee devised to 9k feme covert
for her separate use. She entered into a contract for sale, and died,
having devised the estate to her husband, who sued the purchaser
for specific performance, which the Court refused to decree, think-
ing the case too doubtful to enforce the title upon a purchaser. So
far as that case goes, it is in confirmation of the doctrine laid down
in the earlier cases. Then in this country we have the observations
made in Neweomen v. Hassard{b)^ by the Master of the Rolls, who
says : — '* The only case, of which I am aware, in which ^feme covert
to whom real estate is conveyed or devised, for hev separate use,
was obliged, before the statute, to convey her estate by a fine, was,
where she was seised in fee ; and, in such case, it has been consi-
dered that, to bind her heir, she should levy a fine, and be examined ;
and, since the Statute for the Abolition of Fines and Recoveries, the
provisions of the sections referred to should, I apprehend, be com-
plied with;" and then he goes on to say that the doctrine is
otherwise as to estates in lands of which she is seised for life only,
to her separate use. In the case of Morris v. Morris (c), befi>re
Vice-chancellor Kindersley, he says that — <' An absolute gifk of
personalty, to the separate use of a married woman, gives her the
power to deal with it, independently of her husband, either by deed
or win, which is not the case with respect to fee-simple and real
estate.'^ I may next mention 2 Roper ^ Husband and Wife, p. 186,
(a) 14 Beav. 169.
(6) 4 Ir. Chan. Rep. 274.
(c) 4 Drew. 38.
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where it ia 8aid that — *' A limitation of real estlite to the wife in
fee, for her sole and separate use, without more, will not enable her
to dispose of it during the manriage, otherwise than by fine and
recoTery ; because no power having been given to her by the instru-
ment to make any disposition of the property, she can only do so by
the mode prescribed by law ; and, if she omit to do so, her heir will
take the estate." Doe d. Siepkens v. Scoti (a) is a clear authority
to the same effect, so far' as a Court of Law is concerned. Thus, as
I have said, the current of authcurity is all the same way, respecting
the power of a married woman over her real estate in fee-simple,
without levying a fine, or executing a deed under the statute-
There are, to be sure, general expressions respecting the powers of
femes ecvert over property settled to their separate use ; but, when
they come to be examined, they are found to relate either to perso-
nal property, to estates for life, or to the operation of deeds during
the life of the woman, or to cases where there was a specific power
added to the limitation. Such are the cases referred to in the note
to the general statement in 1 Sugden on Powers^ p. 206^ where the
writer says : — *^ When a married woman has property settled to her
separate use, without any restraint on alienation, she is deemed a
feme sole^ and may dispose of it accordingly." For that proposition
he refers to Bell v. Hyde{h)\ Norton v. Turv%U{e)i Grighy v.
Cox(d)y and Hulme v. TennanUe); as to each of which some of
the distinctions I have alluded to will be found to apply. So, in
Pybue V. Smith (f)^ cited for the respondent, there were, special
powers of appointment of the estate reserved to the wife, and she
was alive at the time ; and, in TuUett v. Armstrong (^), the estates
were only given to the lady for her life.
The case of Power v. Bailey (A) was also much relied on by the
Counsel for the respondent, as an express decision in their favour ;
but^ on examination, it will be found to admit of the same distinc-
1660.
CAoneory.
^ ■ ' > *
ADAMS
V.
JudgMUMK
(a) 4 Bmg. 505. (b) Tnc Ch. 328.
(c) 2 P. Wms. 144. (<0 1 Ves. 517.
(e) 1 Bro. G. C. 16; S. C.» 1 W. & Tn. Ii. Cfw. 3d4.
09 3 B. C. C. 340. (g) I Beav. 1.
(A) 1 B. & B. 49.
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CHANCERY REPORTS.
1860.
Chancery.
Judgment*
tion. The estate of the wife were vested in trustees, for her sole
and separate use, and so that she should have full power and dominion
over the same. The wife granted an annuity (reciting her power
over the property) ; and it was held binding on her second husband,
she herself, however, being alive at the date of the decree. Stead
V. Wilson (a) was a case of a life estate only in the wife.
The respondents, however, mainly relied on the case of BaffgoU
V. Meux{b\ as actually deciding and settling this question. The
point decided in it was that, on a devise in fee to a feme covert^
for her separate use, a restraint against alienation could be imposed
during the coverture; and it was argued from this that the case
imported that, without such a clause, an absolute right of alienation
in fee would exist. The case decides no such proposition. The
alienation actually made was held void as against the wife, who was
living at the time of the decision ; and the* whole import of the
decision is no more than this, that, so far as the devise gaye her
power to deal with the estate as B,feme sole^ so far a restriction on
alienation might be imposed : but as by law, on all the authorities I
have referred to, she could not dispose of such ten estate in fee-simple
as a feme sole^ the restriction on alienation would be unnecessary
or inapplicable, and would be limited to that w^ch she had the
power to do, though, within that range, it would be vdid enough.
The observations of Lord Lyndhurst, in giving judgment, may be
considered as implying that his opinion would be in favour of the
respondent here ; but the point was not strictly before him ; and,
whatever may be the tendency of modem decisions to enlarge the
position or power of hfeme covert^ as to her separate estate, and the
import of general expressions I have alluded to, I cannot consider
the apparently settled doctrine to which I have adverted as shaken
or overruled. If it is to be so dealt with, it must be by higher
authority than mine. I must, accordingly, make a decree in favour
of the petitioner ; and, as this is a mere ejectment suit, the decree
must be with costs.
(a) 2 Beay. 245.
(6) 1 CJol. 138; S. C, on appeal, 1 PhU. 627.
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Declare that the deed of the 23rd day of May 1885 waa ino-
perative to pass any estate or interest in the premises
therein comprised ; and that the petitioner, as heir-at-law
of Isabella Gramble, otherwise Adams, is now entitled to the
premises demised by the lease of the 10th of April 1791 ;
and let an injunction (if necessary) issne, to pat the said
petitioner into the possession thereof. Refer it to the Mas-
ter to take an acconnt of the rents and profits of the said
premises in the said lease comprised, from the death of the
said Isabella Gramble, in the month of February 1 842, after
all just credits and allowances ; and let the respondent pay
to the petitioner the amount which the Master shall so find
due, within one month from the date of the Master*s report,
together with the costs of the suit, up to and including this
hearing ; and let the costs of the account in the Master's
office be in the discretion of the said Master.
General Hearing Book^ 26,/. 347.
1860.
Chancery,
' , '
ADAMS
V.
OAMBLS.
Order.
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278 CHANCERY REPORTS-
1860.
Ch, Appeal.
Court o{ appeal in tfjftancerp.
In re FITZGERALD'S ESTATE ;
Ex parte ANDREW COMYN, AppellatU.
Aprils.
In an affidayit Fbahcis FiTZGERALD, who was possessed of certain leasehold
iled under the . . , . ^
rrorisions of premises m the town of Gal way, execnted a bond and warrant,
Jon of the 13 conditioned for the payment of £700, upon which a judgment
•\ 29, for £*6 ^*® entered in Hilary Term 1840. The judgment was registered
'^^^^ a i" ^®^^» ^^ re-registered on the 21st of July 1856, it having,
;°^^^J^^ in 1854, become vested in the appellant.
^*^^d °^ ^^ ^®^^' Patrick M. Lynch obtained a judgment against Francis
ant's last ' Fitzgerald, in the Court of Common Pleas, for the sum of £894.
known place
of abode, as lOs. LOd., besides £2. 2s. 8d. costs, and registered the same as a
'•late of the 7^
town of Gal- mortgage, under the provisions of the 13 & 14 Ftc, c. 29.
«rav but noip
of the county Francis Fitzgerald died in 1857 ; and, on the 8th of March 1859,
was held hi. Patrick M. Lynch filed a supplemental affidavit, under the provi-
bdS^^too " 8io°8 ^^ t^« 21 & 22 Vic, c. 105.
yagne. j^y^^ Redington had obtained a judgment against Francb Fitz-
Thesameaffi- o -o
davit stated the gerald, in Trinity Term 1855, and registered the same as a mort-
amonnt of the
judgment to g&ge on the 25th of October 1855 ; but the affidavit was defective,
be £894 and
£3. 28. 8<L for ^^ i^ct containing a substantive statement of the plaintiff's last
Sbe sum m<^ known place of abode. The estate of Francis Fitzgerald was sold
tTlttl^^ in the Incumbered Estates Court on the 8th of April 1859 ; and
S^^^^i ^^^ *^® settlement of the final schedule of incumbrances. Judge
^^ep^tj^"* Hargreave ruled that the supplemental affidavit filed by Patrick M.
added to the Lynch was invalid, having been sworn subsequently to the death of
costs in the
affidayit.— the conusor ; but that his original affidavit was sufficient, and that
Held^ to be
snch a yari- his judgment was, therefore, entitled to be paid in priority to the
anoe as invali-
dated the affi- judgment of the appellant.
^ From that decision the present appeal was brought, upon the
Statemmit. grounds, among others, that the affidavit originally filed by Patrick
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M. Lynch was defective: firstly; because it did not contain any
sufficient averment of the .defendant's last known place of abode;
secondly ; because the sum of £3. 2s. 8d., mentioned therein as
having been recovered for costs, did not correspond with the record,
upon which the sum for costs appeared to be £2. 2s. 8d.
Lynch's original affidavit ran as follows: —
'< Common Pleas.
1860.
Cb, Appeal,
Patrick Mark Lynch, of Ren*
more-lodge, in the county of
the town of Galway, Esq., aged
thirty years and upwards, the
Statement,
«* Patrick Matk Lynch, of Benmore-lodge, .
in the county of the town of Galway,
Esq., Plaintiff;
Francis Fitigerald, late of the town of
Galway, but now of the comity of
Dublin, Defendant
phdntiff in this cause, maketh oath and saith that the defendant, by
his name and description of Patrick Mark Lynch, of Renmore-lodge
in the county of the town of GWway, Esq., did, on the 27th day of
February, in the year of our Lord 1856, and in or as of Hilary
Term, in the said year of our Lord 1856, obtain a judgment in Her
Majesty's Court of Common Pleas in Ireland, against Francis Fitz-
gerald, late of the town of "Galway, but now of the county of
Dublin, the defendant in this cause, by the name and description of
* Francis Fitzgerald, late of the town of Galway, but now of the
county of Dublin,' for the sum of £894. lOs. 01. sterling, besides
£3. 28. 8d. for costs, as by the records of said Court may more fully
appear. This deponent further saith that, to the best of deponent's
knowledge, information and belief, the said defendant in this suit is,
at the time of swearing this affidavit, seised and possessed of, or has
disposing power, which he may, without the assent of any other
person, exercise for his own benefit, over and issuing out of certain
tenements, hereditaments and premises hereinafter mentioned ; that
is to say.— [Here followed a description of the lands sought to be
i^ff^ted.] Deponent further saith that the sum of £894. 10s. Od.,
besides the sum of £3. 2s. 8d. for costs, aforesaid, so secured by said
judgment, as aforesaid, with interest thereon, still remains justly
due and owing to this deponent, on foot of said judgment, over and
above all just and- fair allowances, and that said judgment is still in
full force, virtue and effect in law."
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280
CHANCERY REPORTS.
1860.
Ch. Appeal.
^T^ '
In re
FITZQSR-
axd's
ESTATE.
Statement.
6UPPLEMENTAJL AFFIDAVIT.
"/n the Court of Common Pleas.
" Patrick M.J.yiich, of Renmore, in the county Patrick Mark LvDch, of
of the town of Galwaj, Esq., Plaintiff;
Francis Fitzgerald, late of the town of Galway,
bat now of the county of Dnblin, Esq.»
Defendant
And the Acts of 13 8c 14 Vic., c 29, and the
21 & 22 Vic,, c 105.
Renmore, in the county of
>. the town of Galway, Esq.,
aged forty years and up-
/ wards, the plaintiff in
the cause in the title hereof named, and hereinafter mentioned,
maketh oath and saith that that he this deponent obtained a judg-
ment in said cause on the 27th day of February 1856, in or as of
Hilary Term 1856, in Her Majesty's Court of Common Pleas in
Ireland, against Francis Fitzgerald, late of the town of Galway,
Esq., the defendant in said cause, in the title hereof named, and
hereinafter stated, for the sum of £894. 10s. Od. sterling, besides
£3. 2s. 8d. for costs, as by records of said Court may appear. Saith
that the cause in which he obtained said judgment is entitled
* Patrick Mark Lynch, of Renmore, in the county of the town oi
Galway, Esq., plaintiff; and Francis Fitzgerald, late of the town of
Galway, but now of the county of Dublin, Esq., defendant.' Saith
that the deponent is an Esquire, and that his present and usual place
of abode is at Renmore, in the county of the town of Galway ; and
saith that the said Francis Fitzgerald, the defendant in said cause,
and the person whose estate is intended to be affected by the regis-
tration of this affidavit, is now deceased, and was aii Esquire, and
that his usual and last known place of abode was at George's-place,
in the county of the city of Dublin ; and saith that the name ' Pat-
rick Mark Lynch ' is the plaintiff in said cause, and the party who
obtained said judgment is the deponent's proper name. This depo-
nent further saith th^t, to the best of his knowledge and belief, the
said^Francis Fitzgerald was, at the time of the entering and regis-
tering of the said judgment, and at the time of his death, seised or
possessed, at Law or Equity, of, or had disposing power which he
might, without the assent of any other person, have exercised for
his own benefit, over certain lands, tenements, hereditaments and
premises, hereinafter mentioned. — [Here followed the description of
the lands.] — Saith that the sum so secured by the said hereinbefore
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mentioned judgment, besides interest, and £3. 28. 8d., for costs, still
remains justly due and owing to the deponent; and saith that said
judgment is still in full force, virtue and effect in law. — Sworn," &c.
Mr. Brewster (with Mr* Sherlock), for the appellant
The 13 <fe 14 Vic, c. 29, gave to judgment creditors the power;
of converting their judgments into mortgages, by filing the affidavit
prescribed by the 6th section. This was the first legislative
enactment, in this country, which gave a creditor the power of
transferring to himself the lands of his debtor, without any notice
to the latter, or any act done by him in that respect. While
conferring on the creditors this enormous power, the Legislature has
most properly guarded the rights of the debtor, by requiring a very
particular and precise form of affidavit to be filed, and the Courts
of Law have strictly construed such affidavits : McDowell v.
Wheatley (a) ; Crothie v. Murphy (6). Lynch's affidavit is de«
fective, because it does not contain any positive averment of the
defendant's last known place of abode ; or if it does, the averment
is insufficient on account of its vagueness. The affidavit is also
defective in not stating correctly the amount of the sum recovered
for costs. It may be that the place of abode mentioned conveys
sufficient information, but that is not the question. In McDowell
v. WhecUley, Monahan, C. J., is reported to have said (e), '* If an
Act of Parliament requires that a particular thing shall be done
. in a particular way, for a particular object and purpose, it is not
for a Court of Law to inquire whether the same object might not
be attained another way." The description ^< now of the county
of Dublin" is entirely too vague, it might nearly as well have
been ^' now of the kingdom of Ireland." In Fonblanque v. Lee (d),
it was held that where, upon the registration of a bill of sale, the
affidavit required by the Bill of Sale Act (17 & 18 Vic^ c. 55)
omitted the description of the residence and occupation of one of
the attesting witnesses to the bill of sale, the bill of sale was, by
reason of such omission, rendered void as against an execution
1860.
CA. Appeal
ArgununU
(a) 7 Ir. Com. Law JR^. 562.
(c) p. 569.
VOL. 11.
(b) 8 Ir. Com. Law Rep. 301.
(d) 7 Ir. Com. Law Rep. 550.
36
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382
CHANCERY REPORTS.
)860.
Ch, AppeaL
In re
FiTzasm-
ald's
ESTATE.
Argumeni.
creditor. This defect of vAguetiess coald not be cured bj the
supplemental affidavit; for the 21 & 22 Vic, c. 105, under whose
provisions such supplemental affidavits are filed, was never intended
to give any power to remedy substantial defects; it merely gives him
power of stating by substantive avernient that which in the original
affidavit had been stated by way of recital.
The sum stated in the affidavit as recovered for costs is £3.
2s. 8d. ; the sum mentioned on the record is £2. 2s. 8d. This is a
distinct variance. The amount of Variance is immaterial; there
is, in fact, therefore, no such judgment on the the record as that
mentioned in the affidavit. The proper plea would be nul tiel
record.
Mr. P. J. Blake and Mr. M. McrriSj for P. M. Lynch.
The place of abode is stated in this affidavit with as much pre-
cision as was possible under the circumstances. — [The Loan
Chancellor.'— It is not stated at alL **0f the county of Dublin **
is no description of the place of abode, within the meaning of
the Act. tt might nearly as well have described him as of England,
Ireland, or Scotland. A man's place of abode means where he
may be found.] — ^In MPDoweU v. WheatUy there Was no positive
averment of the place of abode at all, there was only an aver-
ment by way of recital ; that is not so here : there is a positive
averment, and it is submitted that that averment is sufficient. Fon-
blangue v. Lee is not analogous, for the Bill of Sales Act requires
greater accuracy as to the residence of parties, in consequence of
the liability of trader^ to bnnkruptcy. In ff aslope v. nome{a),
it was held that, in ad affidavit to hdd to bail, the plaintiff's clerk
might sute his abode to be the office where he was employed during
the greater part of the day, though at night* he used to sleep at
another place.
As to the objection that the affidavit does not correctly state the
sum recovered for costs, the 13 & 14 Ttc, c. 74, s. 10, says, that
upon the lodgment of any memorandum for the registry of any
judgment in the office for the registry of judgments, the Regis-
(a) 1M.&S.103.
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283
trar shall give a certificate of such registry, with a reference to
the books of the office. The J02Qd General Order (1854) provides
that **the Master, in awarding the costs of a judgment, shall, on
produetion of the certificate of the registration of such judgment,
under the 13 & 14 Vic^ c 74, add to the costs therein the sum of
one pound, as and for the ousts of such registration." The 11th
section of the 13 <& 14 Vie., c. 74, enacts> *^ That all costs properly
incurred in the registration of judgments shall be allowed on tax-
ation of costs, and be added to and charged and recoverable in like
manner and together with the amount of the judgment so registered."
Therefore, the one pound for registration forms part of the costs
recovered, and are propedj included in the words *^ moneys ordered
to be recovered," 4^. 3ut it is submitted tb<it it was not oeces-
sarj to state in the affidavit th^ amount of the costs at all.
The 6th section of the 13 & 14 Fm., c. 99j enacts that the affi-
davit shall state *Hhe amount of the debt, damages, costs or
moneys, recovered or ordered to be paid by such judgment, de^
cree, order, or rule ; " redendo singulu nngulUy the word ** costs "
refers only to costs recovered for a decree, order, or rule.
Jkrfpmvu*,
Mr. Sullivan and Mr. Beyiagh^ for jteddington.
In Blaokwell v. England {a)^ it was held that, where a bill of
sale was attested by a witness described as <* clerk to Messrs.
Brundrett and Bandall, solicitors, Temple," the fact being that
be spent his business hours there, but took his meals and slept
elsewhere, the description of residence . was Jield auAcieni. In
that case, Erie, J., in his judgment said, (p. 549), '^ I am happy to
say thajt the sound principle of common sense on which we decide
in construing this Aet is no novelty. In Haslope t. 7%onM,
Lord EUenborough said that the words place of abode did
not necessarily mean the place where the defendant sleeps; that
the object of this rule of Court was to ascertain the place where
^he deponent was most usually to be found, which in the present
case wee the office in which he was employed during the greater
part of the day, and not the place whither he returned for the
(a)8EIL&B.541.
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284
CHANCERY REPORTS.
1860.
Ch. Appeal
In re
Fitzger-
ald's-
ESTATE.
Argument,
purpose of rest. The rule of eonstruction is the same, whether
it he a rule of Court, or au Act of ParliameDt.** In Wills v.
Adey (a), '' of the parish of Fisherton Anger, on the list of voters
for the said parish of Fisherton Anger," was held a sufficient
description of the defendant's place of ahode, under the Voters
Act ; and in Osborne v. Gough (6), '* of Birmingham" was held a
sufficient description of the place of ahode of the attorney whose
name was indorsed on the notice of action.
Mr. Sherlock replied.
The Lord Chancellor.
Judgwmnt, '^^^ affidavits, upon the validity of which we have now to
decide, purport to be framed in accordance with the requirements
of an Act of Parliament which specifies very fully the matters
which such affidavits ought to contain. Upon the construction
of that Act of Parliament there have be^n already some im*
portant decisions, all tending to establish that the matters which
are required, by the Act, to be stated, must be stated by positive
averment, upon the oath of the party making the affidavit. The
21 & 22 Fife, c. 105, was, no doubt, introduced by the Legis-
lature as a remedial enactment ; but, as far as the present question
is concerned, that Act only enables the party, by means of a
supplemental affidavit, to convert into matter of positive averment
matters which have been introduced by way of recital into the
original affidavit. In 'the case now before us there can be no
doubt whatever as to the invalidity of Mr. Reddington's affidavit,
inasmuch as it does not contain any averment pledging his oath
to the fact of . Fitzgerald's last known place of abode; it merely
states the facts which are embodied in the description of the
judgment
As to Lynch's affidavit the case is somewhat different. It does
contain a statement amounting to an averment, that Fitzgerald was
"late of the town of Galway, and now of the county of Dublin;**
"now" meaning the time of swearing the affidavit. That he ^
(a) 2 C. B. 246. (6) 3 B. & P. 550.
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CHANCERY REPORTS.
285
of the town of Galwaj was quite true ; and all the authorities which
have been referred to establish that such a description would amount
to an averment that that was his place of abode. ,The Acts, upon
the construction of which those cases were respectively decided,
required that the place of abode of the party (or of his attorney, in
some cases) should be averred, and were held, in the respective
decisions, to be satisfied by stating the person to be ''of* such a
place. There have been also several decisions as to the certainty
or vagueness of the place of abode assigned ; from which it appears
that, whether stating a party to be ** of London,^ or ** of Westmins-
ter," be sufficient or not, having regard to the great extent of these
respective places, there can be no doubt that stating him to be
*'of Birmingham," or "of Bolton-in-le-Moore," is sufficient. If,
then, this part of Lynch's affidavit had stopped at the words '' late
of the town of Gralway," it would have been hard to say that that
was not a sufficient description of his last known place of abode.
It may be questioned whether Fitzgerald did, in fact, acquire any
place of abode, within the meaning of the Act, after he left Galway ;
but Lynch has established, by his affidavit, that he did ; for in it he
describes himself as ** now of the county of Dublin," which imports
that he had acquired a place of abode in the county of Dublin.
Now I am quite clear that ** now of the county of Dublin " is not a
sufficient description of a party's place of abode. It is quite too
▼ague ; and, as the entire averment shows that the town of Galway
was not his last place of abode, it follows that the affidavit is
defective in this respect. It is plain that the party did not intend
to practise any deceit or fraud ; and it is, no doubt, to be lamented
that parties endeavouring to do right should be hampered by the
requirements of the Act of Parliament ; but, on the other hand, it
most be remembered that this Act enables judgment creditors, by
means of such affidavits, to convert their judgments into mortgages,
and thereby transfer to themselves the estates of their debtors i and
the Legislature has properly guarded the rights of the debtors, by
requiring an exact and particular form of affidavit.
There is another matter as to which Lynch's affidavit is defective ;
t^^ amount recovered by the^ judgment, as stated in the affidavit.
1860.
Ch. Appeal,
Judgment.
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286
CHANCERY REPORTS-
I860.
Ch, AppeaL
Judgment,
does not correspond with the amount appearing oh the record. I
have again to regret that a party should be thus embarrassed by the
statute, when he endeavours to comply with its requirements ; but
he has done so in a way wliich will not allow us to assist him in his
difficulty. The original sum recovered by the judgment is cor-
rectly stated, but the affidavit states that there was also recovered a
sum of £3. 2s. 8d. for costs. When the record is produced, it
appears that the additional sum recovered was not £3. 2s. Sd., but
£2. 28. 8d., and that it was recovered, not as costs, but as damages
for the detention of the debt Now, in this point of view, £1 is
of as much importance as £100 ; and, although the party intended
to do what was right, he has not, in point of fact, complied with
the requirements of the statute, and his affidavit is accordingly
defective.
The order of the Court below must be reversed.
The LoBD Justice of Appbai^.
I entirely concur. in the view taken by the Lobd Chancbllob,
and in his reasons. The appellant in this case and Mr. Lynch and,
the one a creditor by judgment, of the year 1840, and the other a
like creditor, of the year 1856. The latter contends that, by regis-
tration, he has acquired a prior title, and become a mortgagee. In
order to establish this priority, and thereby postpone the prior
creditor, it is incumbent on him to prove a strict compliance with
the provisions of the statute, which is the indispensable condition of
acquiring the right and benefit it is meant to confer. The Court
is, accordingly, bound to see that all that the statute requires has
been complied with, otherwise it is impossible that the prior title
can be displaced or postponed. Now we have both judicial and
legislative authority for exacting a precise adherence to all its oon-
ditions. The facts it requires must be stated positively and expM-
oitly; recitals or inferences cannot be substituted for them; nor
can the want of them be excused on the ground cf their being
immaterial, or by arguing that their absence may be supplied by
equivalent matters. The decisions of the Court of Common Pleas,
in Fonblanque v. Lee and McDowell ▼• Wheatiei/^ followed by the
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Act of Parliament for remedying defective registrations, preclude
08 from yielding to any such considerations, and from dispensing
with a strict compliance with all or any of the conditions to which I
refer. Now I think these conditions have not, in several respects,
heen.obfterved in the present case* The affidavit does not state the
last known place of abode of the debtor ; for although it might have
been sufficient to have said, " late of the town of Galway," that
place of abode appears to have been abandoned, and '* the county of
Dublin** fiubstitnted for it; this is not, in my opinion, a descrip-
tion of the place of abode, such as to comply with the requisition
of the statute. «
The last objection is, that there is a variance between the affidavit
of registry and the judgment of record. That this variance exists
cannot be denied, atid the defence against it amounts to no more
than assertion of its immateriality. Now, it is true that the differ-
ence between the amounts of the doms in the affidavit and in the
judgment is very small, and, I dare say, the greater sum could be
recovered by execution; but still the variance exists. The two
things are not identical } and whether the difference be a difference
of £1 or of £1000, yet the fact is, that the judgment of record
is not the same as that described in the affidavit of registration.
The affidavit, and consequently the registration, is, therefore,
invalid, and the judgment of the Court below must be reversed.
Judgment,
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288 CHANCERY REPORTS.
1860.
Ch, Appeal,
In re EDWARD SANDIFORD POWER'S ESTATE;
JOHN TAYLOR, Appellant.
Nov. 12.
If an aflBdavit, This was an appeal against an order made bj Judge Dobbs, in the
purpose of re- Landed Estates Court, by which he disallowed a judgment mort-
^Kment aaa g^o^* registered bj the appellant against the lands sold in this
undw^thepro- ™^*^^ "P^*^ ^^® ground that the judgment had not been duly
Ia*&°i4°V^*** registered as a mortgage, under the provisions of the 13 & 14
c. 29, sabstan'. Vic, C. 29.
> tially complies
with the re- John Taylor, the appellant, obtained a judgment as of Trinity
aairements of
the 6th section Term 1858, against Edward Sandiford Power, the owner, for £3559.
of that statute,
it is snffident. 12s. 4d., with £3. 3s. Od. for costs; and on the 3rd of August 1858,
Therefore,
where sach an registered the same as a mortgage, under the 13 & 14 Ftc, c. 29*
afiSdavit ixras
entitled in the '^^^ affidavit sworn at the time of the registration was as follows : —
Sl^^^^J ^f " ^» ^ Court of Exchequer.
^\ ^t^r '* " ^^^^ Taylor, of No. 116 Grafton-street, fai
ter alia) that *^® ^^ ^' Dnblin, solicitor. Plaintiff.
"J. T., the Edward Sandiford Power, of No. 7 Wilton-
plaintiff, by place, Belgrare-sanare, in the county of
the name and ^,.,« ,, i .. -«, -w^ , -, \
description of Middlesex, England, Esq., Defendant
J. T., of 116 And the Act of the 13 & 14 Ftc, c, 29.
John Taylor, of llBGraf-
ton*street, in the county of
the city of Dublin, solicitor,
aged thirty years and up-
in. the'^d^^of ^ards> the plaintiff in this cause, maketh oath and saith, that he,
dltorl'^didT^on ^^'® deponent, John Taylor, the plaintiff, by the name and descrip-
?nl ^^'^ob- ^^^^ ^^ ^^^^ Taylor, of No. 116 Grafton-street, in the city of
tain a judj?- Dublin, solicitor, did, on the 15th day of July, in the year of our
ment in the .> ^^ j
Court of Ex- Lord 1858, and in or as of Trinity Term, in the said year of our
cheqaer,
against the Lord 1858, obtain a judgment in Her Majesty's Court of Exchequer
defendant in
this cause, by
the name and description of £. S. P., of, &c., . . . . that the usual or last-known
place of abode of the said E. S. P., the defendant in this cause, the person whose
estate is intended to be afiected by the registration of this affidavit, is at, &c. . . .
that, to the best of deponent's knowledge and belief, the said £. S. P., the defend-
ant in this cause, is, at the time of swearing this affidarit, seised or possessed
of," 4c, &c —
l/e/</— First, that the abote affidavit contained a sufficient statement of the title
of the cause.
Secondly ; that the affidavit sufficiently identified the defendant in the judgment
with the person whose estate was sought to be affected by the registration of the
affidavit.
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289
10 Ireland, against the defendant in this cause, bj the name and I860.
Ch, JippeaL
description of Edward Sandiford Power, of No, 7 Wilton-place, -
Belgrave-sqaare, in the county of Middlesex, England, Esq., for the
sum of £3559. 128. 4d. sterling, besides £3. 8s. for costs ; as bj the
records of said Court may fully appear. This deponent further Statement.
saith, that the usual and known place of abode of this deponent is
at No. 116 Grafton-street, in the county of the city of Dublin, and
that he is a solicitor of the Court of Chancery, and an attorney of
this Honorable Court ; and that the usual or last known place of
abode of the said Edward Sandiford Power, the defendant in this
cause, the person whose estate is intended to be affected by the
registration of this affidavit, is at No. 7 Wilton-place, Belgrave-
square, in the county of Middlesex, England ; and that the said
Edward Sandiford Power is not, to deponent's knowledge or belief,
of any trade or profession, but is an Esquire. This deponent further
saith, to the best of his knowledge, information and belief, the said
Edward Sandiford Power, the defendant in this cause, is, at the time
of swearing this affidavit, seised or po^/sessed of, at Law or in Equity,
or has disposing power, which he may, without the assent of any
other person, exercise, for his own benefit, over certain lands, tene-
ments, hereditaments and premises hereinafter mentioned ; that is to
say, the town and lands of B. — [Here followed the several denomina-
tions of the land sought to be afibcted, and the names of the baronies
and counties in which they were respectively situated.] — Deponent
further saith, that the sum of £1779* 16s. 2d. for debt and costs
still remains justly due and owing to this deponent, upon said
judgment, over and above all just and fair allowances, and that said
judgment is still in full fgrce, virtue and effect in law, not executed,
satisfied, set aside, paid off or discharged.
"John Taylor."
The lands in question were subsequently sold in the Landed
Estates Court $ and on the settlement of the final schedule, before
Judge Dobbs, Taylor's judgment mortgage was disallowed as aix
incumbrance, on the ground that the requirements of the 6th section
of the 13 & 14 Ftc, c. 29, had not been complied with, inasmuch '
as the affidavit did not contain any averment of the title of the
TGI*. 11. 37
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290
CHANCERY REPORTS.
Argument,
cause in which the judgment had been recovered, nor any averment
which identified the defendant in the judgment with the owner of
the lands sought to be affected bj the judgment mortgage.
Against that decision the present appeal was brought.
Mr. Brewster, with Mr. F. Wahhe and Mr. GambUy for the
appellant.
This case is quite distinguishable from McDowell y. Wkeatiey(a).
There the affidavit did not contain any positive averment whatever
of the title of the cause, nor of the last-known place of abode of the
defendant. Here there is such positive averment as must, by
reasonable and irresistible inference, inform anyone, reading the
affidavit, of the title of the cause, and of the identity of the defend-
ant in the judgment with the person whose estate is sought to be
affected by the registration. Reasonable inference is sufficient in
such cases: JRoublot v. Bouiell{b)i Blaekwell v. England {e).
Mr. J, E, Wahhe and Mr. Coxe, in support of the order of the
Court below.
There is here no positive averment of the title of tiie cause
sworn to ; for the entitling of the affidavit is not covered by the oath.
Neither is there any positive averment that the defendant in the
judgment is the person whose estate is sought to be affected by the
registration. The affidavit merely states that ^*the last-known
place of abode of the said Edward Sandiford Power, the defendant
in this cauflfc, the person whose estate is intended to be affected by
the registration of this affidavit, is,** &c. Affidavits for the purpose
of converting judgments into mortgages are strictly construed:
McDowell V. Wheatley\ Crosbie v. Murphy {d)\ In re Fitz-
gerald^e Ettate {e) ; In re Ferrall (f). The only proper form of
entitling an affidavit is, A v. B : Richard v. Isaac (jg).
(o) 7 Ir. Com. Law Eep. 562. (6) 5 Jur., N. 8., 548.
(c) 8 £U. & Bl. 541. (<0 8 Ir. Com. Law Bep, 301.
(e) Ante, p. 278 ; S. C, 5 Ir. Jur., N. 8., 205.
(f) 5 It. Jur., N. S., 274. (^) 1 Cr., M. & B. 13C.
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CHANCERY REPORTS- 291
The LoBD Chahcellob.
The Court is perfectljr satiBfied that, in the affidavit now hefore
it, all that is required bj the Aot of Parliament has been more than
substantiallj oomplied with, and that the principle of the decision
in IPDaweli v. WheiUley has been carried too far in the Court Judgment.
below, if it has been supposed to invalidate the affidavit in the pre-
sent case. It has been said, during the argument, that if we hold
this affidavit good, we must overrule the decision in McDowell v«
Wkeailey. We do no such thing. The Act of Parliament,
upon which this question depends, requires, bj iu 6th section,
that the affidavit made for the purpose of converting a judgment,
order or rule into a mortgage shall contain, among other matters,
an averment, upon oath, of the usual or last-known place of abode,
and the title, trade or profession of the plaintiff and of the defend-
ant In the affidavit in McDowell v. Wheailey^ there was no
averment whatever of the usual or last-known place of abode of the
defendant. It was there sought to help out that defect by referring
to the statement that the order had been registered ^* against James
Sadleir, by the name and description of James Sadleir, of blona-
cody, Clonmel, in the county of Tipperary, Esq., M.P/' But that
did not cure the defect, for he might have had a last-known place of
abode subsequently to the registration of the order. The Court w^
in point of fact, quite right in holding that to be a defective
affidavit, because tiiere was absolutely no compliance with the
requirements of the Act, in the respect mentioned ; but it is entirely
another question whether the Court is bound to overlook and to
consider as defective every species of averment except one in the
precise form, as '' that the name of the cause was so and so,'* &c.f
going in detail through all the statements. For my own part,!
consider the decision in this case, in the Landed Estates Court, to
be extremely unsatisfactory. What is required by the Act to be
stated in the affidavit ? The name or title of the cause, the Court
in which the judgment has been obtained, the date of the judgm<^nt,
and the names and the usual or last-known place of abode, and the
title, trade or profession of the plaintiff and of the defendant, and
the amount of the debt recovered by the judgment. Well, in tb^
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292
CHANCERY REPORTS,
1860.
Ck. Appeal
In re
power's
ESTATE.
affidavit before us, the Court is stated to be the Exchequer ; the
date of the judgment to be the 15th of July 1858. The names and
description of the plaintiff and defendant are sworn to be — [Here
the Lord Chancellor read the description in the affidavit] — and
JudgmmUn the amount of the judgment to be £3559* 12s. 4d. The question is,
has the title of the cause been sufficiently stated ? There are two
different ways in which this might have been done. One was by an
independent substantive averment, that the name of the cause in
which the judgment was recovered was so and so; but another
method of averring the title of the cause was, by stating, as
in the affidavit before us, that the judgment in question was
recovered by John Taylor, by the' name and description of, &c,
against the defendant in this cause, by the name and descrip-
tion of Edward Sandiford Power, of, &c The affidavit, there-
fore, states the names and descriptions of the parties who must
have been the parties to the cause in which the judgment was
recovered, and whose names and descriptions would have con-
stituted the title of that cause; for the practice is, that a judgment
is headed by the names of the parties to the cause in which that
judgment was recovered, and no other title of it would be right.
Therefore the present is a fair statement, on the part of the plaintifl^
that the title of the cause, in which the title sought to be registered
4iad been recovered, was *' my name and description against your
name and description.** It appears to me that, without deducing
any inference, and by mere reference to the legal practice, that that
is the title of the cause.
The next objection that has been made to the form of this affl*
davit^ I confess I find great difficulty in compi^hending ; namely,
that there is nothing in the affidavit to identify the defendant in the
judgment with the owner of the lands sought to be affected by the
registration. The point of that objection, I presume, is, that
instead of saying ** that the person whose estate is intended to be
affected is seised or possessed,** ^., the deponent states, "tliat
Edward Sandiford Power, the defendant in this cause, is seised or
possessed,*** &c Now, it is to be observed that the title of the
cause, as set forth in the margin of the affidavit, oorresponds with
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CHANCERY REPOETS.
293
the title of the eanse in which tiie judgment was recovered, as
averred in the body of the affidavit Had this not been so, there
would have been an ambiguity, but, as it is, there is none ; the affi-
davit itself shows that the title in the margin was the title of the
judgment; and, therefore, "the defendant in this cause" is the
same person as the defendant in the judgment, who is thus identi-
fied with the owner of the lands sought to be affected*
The Judge in the Landed Estates Court has, perhaps, been dis-
posed to foUow the decision in IPDowell v. WheaiUy too rigorously.
I think that, in the present case, the affidavit substantially contains
every statement required by the Act of Parliament, and is, there-
fore, valid. Accordingly, the decision of the Court below must be
reversed, and this incumbrance held to be good.
JudgvMMU
The LoBD JusTics or Appsal concurred.
In re the Estate of
£. M. EDGEWORTH, Owner and Appellant i
D. M. DAVIS, Respondent.
Noe. 18.
This was an appeal on behalf of the owner, against an order made An afBdatit
by Judge Dobbs, in the Landed Estates Court, by which he had l^^^^e IS
ruled that a judgment obtained by the respondent against the ^29^ i, 6
appellant in 1867, and subsequently registered by him as a mort- Jj^^^^^^
gage, under the provisions of the 13 & 14 Ffc., c 22, was an ^7 ^« i"^
incumbrance on the lands sold in this matter. ^265, with
£8. 2i.8d., for
co«tB. The
record of the
Mr. Sherlock and Mr. G. O'Malley^ for the appellant| contended Jadgment
stated that the
that the affidavit filed by the respondent, for the purpose of con- aam leooreied
Terting his judgment into a mortgage, was defective, because it sides £% 2s.
8d., for dam-
ages, and Xl.
for tejAitry.'^Hetd that the above was not sach a variance as woud invalidate
the affidavit.
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294 CHANCERY REPORTS.
1860. stated that a som of £3. 2 s. 8d. had been recovered for aaU,
>.— >>^^ whereas the record of the judgment stated that £2. 2s. 8d. bad
In re ....
xdobwokth's been recovered for datnageSy and £1 for the costs of registration ;
ESTATE*
* and that this was such a variance as invalidated the affidavit. They
Argument. ^^^ j^ ^^ FiizgeraliTs Estate (a).
Mr. Brewster and Mr. A. (Sraydon^ for the respondent.
It is sufficient if the affidavit state the amoutU of the ** damages,
costs," &c. Here the sum stated in the affidavit is the same as that
appearing on the record.
Per Curiam,
Judgment, There is not any substantial variance in this case. The amount
stated is the same in the affidavit and on the record. In the
case of In re Fitzgerald^s Estate the sum mentioned in the affi-
davit was not the same with the sum appearing on the record.
The order of the Court below must be affirmed.
(a) Anle, p. 278; S. C, 5 Ir. Jar., K. S., 205.
In re the Estate of
E. M. EDGEWORTH, Owner and Appellants
THOMAS R. SMITH, Respondent.
JVw.12.
In an affidarit This was an appeal on behalf of the owner, against an order made '
r^^istered
under the 13 by Judge Dobbs in the Landed Estates Court, by which he had
c. 29, 1. (il ruled that a judgment obtained by the respondent against the
"that deponent <^PP^ll&i^t '^^ 1857, and subsequently registered as a mortgage,
^"a «jntle^ ^*® ^^ incumbrance on the lands sold in this matter.
man," was
held to be a
wrfBdent d^ Mr. Sherlock, for the appellant, contended that the affidavit
cnption of the rr -»
Elaintifi; where registered by the respondent, for the purpose of converting his
e had not any
trade or profession.
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CHANCERY REPORTS.
295
1860.
Ch. Appeal,
In re
judgment into a mortgage, under the provisions of the 18 & 14
Vic^ c. 29» was invalid^ upon the ground (among others) that
it did not contain a sufficient description of the plaintiff. The bdobwobth'b
affidavit contained, as a description of the plaintiff, the following '
statement, "that deponent was, and still is, a gentleman." That -^P«»«»<«
is not a sufficient description to satisfy the requirements of the
6th section of the Act, which enacts that the affidavit shall set
forth *< the ti(le, trade or profession of the plaintiff." It cannot
be inferred that the plaintiff meant to make averment of his
title by stating that he was a gentleman.
Mr. Lawson and Mr. Cathrtw^ for the respondent, were not
heard.
Per Curiam.
It does not appear that the plaintiff had any trade or profession ;
and in that case it is difficult to conceive how he could better
have described his title than he has done. This affidavit is good,
and the order of the Court below must be affirmed.
JudgwtenL
In re the Matter of the Estate of
EDWARD SANDIFORD POWER, Owner;
FRANCIS CARLETON REEVES, PeHHoner.
Nov. 11, 12.
This was an appeal on behalf of F. C. Reeves, against an order The"^er of
made by Judge Dobbs in the Landed Estates Court, disaUowing i^th?llnd2d
a judgment mortgage as an incumbrance ypon the lands sold in ^hdd^'S
this matter. estopped from
objecting,
tiement of the final schednle of mcnmbrances, to a claim which he h^^m^j^
hu affidavit filed a« an answer to the conditional order for sale, to be a chim« nion
the estate He had ahio suffered the the conditional orderrbe^ «&, S2S
a sale to be had, without disputing the daim in question. ^^ w-wiaw, ma
the vahdity of a daim, to which he has not hmuelf filed an objection.
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296
CHANCERY EEPOETS.
1860.
Ch, Jppeal
* ■' y '
In r«
foweb's
ESTATE.
Statement,
In Easter Term 1857> F. C. Beeves obtained a judgment against
the owner, which he registered as a mortgage on the 27th of April
following. In 1858; F. C. ReeTes filed a petition in the Landed
Estates Court for a sale of the lands. A conditional order for a sale
was made, and served on the oWner, who filed an affidavit as cause
against the conditional order, in which he stated that he had made
arrangements to raise money to discharge all the incumbrances
afiecting the lands, including the debt due to F. C. Reeves. The
conditional order was subsequently made absolute, and registered as
a lis pendens.
The lands were sold ; and, on the settlement of the final schedule
of incumbrances, the owner objected to F. C. Reevef claim, on the
ground that the affidavits filed for the purpose of registering his
judgment as a mortgage were defective. Judge Dobbs ruled that
the registration of Reeves' judgment was invalid, and that his
claim should be disallowed. From that decision F. C. Reeves now
appealed. No other party had, on the settlement of the schedule,
filed a petition to Reeves' claim ; but Margaret Kirwan, a puisne
incumbrancer, had filed an answer to Reeves' appeal, with which
she had been served, and now claimed to be heard in support of
the order of the Court below.
Mr. Brewster ^ Mr. Warren^ and Mr. It. Reeves^ for the appellant
Argument. The owner cannot be now heard against this judgment mortgage ;
he should have taken his objection in limine. He has acknow-
ledged the debt in his affidavit showing cause against the conditional
order for a sale, and he cannot now turn round and say that it is
not a debt. He has even allowed the conditional order to be made
absolute, and a sale to be had, without taking any steps to stay the
proceedings on the ground of the invalidity of this claim. He is
now stopped.
Mr. Flanagan and Mr. Coxe appeared for the owner.
The Lord Chancellob.
Judgment. ^^ ^^^^ 1^0^^ ^^0 owner concluded by his own affidavit He
cannot admit and deny the same thing ; what he has sworn must be
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CHANCERY REPORTS. 297
taken to be trne as against himself. It is a most mischievous practice I860*
Ch. AppBoL
to allow a party who, when a conditional order for a sale has been
obtained, swears to a particBlar incumbrance, and suffers the pro-
ceedings to go on, then to turn round and say ** oh ! this is not an
incumbrance at all.** I remember a case in the Court of Exchequer, Judgment.
in which the bill alleged a certain sum to be due on foot of a judg-
ment, and the respondent by his answer admitted that it was, but
on taking the account he endeavoured to show that a less sum was
due ; and he was held to be estopped by his own admission.
The Lord Justice of Appeal.
Suppose the party had endeavoured to impeach the original
decree ; he could have done so only by a proceeding in the nature of
a bill of review, and should have shown that he had not known the
facts upon which he subsequently relied, and had not, at the time,
the means of knowing them.
Mr. Serjeant Sullivan^ Mr. P. J, Blake and Mr. M. Morris^ for
Mrs. Kirwan, contended that, as she had been served with this appeal
and had filed an answer, she was now entitled to be heard, an objec-
tion to the claim having been filed, though not by her.
Mr. Brewster, — If Mrs. Eirwan intended to dispute this claim,
she should have filed an objection herself. An incumbrancer can-
not take advantage of an objection filed by another party. This
appears from the 38th of the General Rules of the Landed Estates
Court.
Mr. Serjeant Sullivan, — It would be a ruinous practice if it were
necessary that a number of incumbrancers, who wished to dispute
a particular claim, should be obliged to file separate objections, and
not be allowed to avail themselves of an objection filed by one. It
has always been the practice of the Incumbered Estates Court that
any incumbrancer might avail himself of an objection filed by any
other incumbrancer, which went to the ^oot of the claim. This lady
has been led astray by what is regarded as the settled practice of the
Court. She ought, at all events, to be allowed to file an objection
nunc pro tunc,
VOL. 11. 38
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298
CHANCERY REPORTS.
Judgment*
The LoBB Chahgellob.
The Rules of the Landed Estates Court are against Mrs. Eirwan;
and if the practice of the Court is in contravention of the Rules, it
is wrong. We hold this judgment mortgage well charged, because
the only objection filed was that of the owner, and he is estopped.
No party can avail himself of an objection which he has not filed
himself. The order of the Court below must be reversed.
Nov. 12.
The three
months within
which an ap-
peal fix>m an
order or deci-
sion of the
Landed Es-
tates Court
mnst be
entered, in ac-
cordance with
the 41st sec-
tion of the
Landed Es-
tates Act (21
and 22 Vic.,
c 72), are to
be computed
exdosiye of
the day of the
date of such
order or deci-
sion, and in-
dnsire of the
day on which
the appeal if
entered.
In re the Estate of KENNEDY, Oumer ;
CRUISE, Petitioner,
This was an appeal on behalf of the petitioner, against an order
made by a Judge of the Landed Estates Court.
Mr. Jf. Morris raised a preliminary objection. This appeal is
too late. By the 41st section of the Landed Estates Act, an appeal
<< must be entered within three months from the date of the decision
or order." In this case the order bears date the 21st of June ; the
appeal was entered on the 21st of September. It should have been
entered on or before the 20th of September.
Mr. William Smith, for the appellant.
The 2nd of the General Orders of the Court of Chanceiy (1843)
provides '* That when time is to be computed by days, it shall be
exclusive of holidays ; and when it is to be computed by the months
it shall be construed calendar month ; and in all cases it shall be ex-
clusive of the first, and inclusive of the last day^ unless the last day
be a holiday, when the following day shall be included."
The Lord Chancsllor.
I apprehend this appeal is in time.
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CHANCERY REPORTS. 299
1861.
L. E. Court.
Srantielf tt#tate# Court
In the ESTATE of CHARLES HUNT,
Owner and Petitioner.
Jon. 23.
The question in this case arose on the hearing of the final schedule Although a
Judge of the
of incumbrances. As the facts appear at length in the judgment, it Landed Es-
tates Court
is onlj necessary to state that Anne Wallace, whose claim was No. 7 will not act in
on the schedule, was assignee from Miss Anne Pfeilitzer, of the sum but is bound'
of £1825, moiety of a charge of £8650; and which, by a anal S^*i^ch^-
decree in the cause of Pfeilitzer v. Huni^ was declared weU charged ^^J^j^^ fj
on the estates the subject of the petition in this matter. Miss Anne ^ ^^^^ ^
Wallace became assignee after the date of the final decree. The point where it ap-
^ " pears that the
was raised by the Judge himself, who considered that the rights of n^bts of
nunors hare
the minors had been overlooked in the Chancery proceedings, and been preju-
diced by such
directed the case to be argued on their behalf. decree, the
Court wiU re-
tain the pur-
Mr. P. Smythe, for the minors. ^ enSlS^^Se
minors to ob-
tain redress in
Mr. 8. Walker, for Miss Anne Wallace. Chancery.
Mr. Omuby, for the owner.
LONGFIELD, J.
Feb. 23.
The facts in this case are not very complicated, and are all ad- Judgment.
mitted, by all parties, without any conflict of evidence. Under the
will of James Hunt, dated the 24th of July 1819, Charles Hunt
(the owner in this mattei;*), and his brother Thomas, were entitled,
as tenants in common, to the lands sold in this matter, subject to
some life annuities. On the 31st of December 1823, Thomas Hunt
conveys his moiety to his brother Charles, in consideration of the
sum <^ £3650, which, however, was not paid, but secured by the
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300
CHANCERY REPORTS.
1861.
X. E, Court.
In re
hunt's
ESTATE.
Judgment,
bond and warrant of Charles, on which judgment was entered as of
Hilary Term 1824. It was clearly intended to remain as a lien on
the estate ; for, on the 1st of January 1824, on the day after his pur-
chase from Thpmas, Charles Hunt executes a settlement, on his
marriage with his present wife, then Maria Pfeilitzer, by which he
settles his estates, subject to the annuities given by the will of
James Hunt, ^' and to the said sum of £3650, so secured by the said
recited indentures of lease and release, of the 30th and 31st days of
December 1823, as aforesaid, and to the interest which shall accrue
thereon." The form of this settlement is not unimportant. It vests
the legal estate in the trustees on certain trusts, one of the earliest
of which is to pay the annuities, " and also the interest to accrue
due in respect of the said sum of £3650, so secured by the bond
and warrant ; " and after those trusts the deed gives an equitable
life estate to Charles Hunt, with remainder to his intended wife and
children. By another deed, Maria Pfeilitzer's property is settled on
the wife, then on the husband, then on the children. Maria Pfeilit-
zer, now Mrs. Hunt, was the sister of the petitioner Anne Pfeilitzer ;
and a great part of their property consisted of the residuary estate
of their maternal uncle, Lucas Garvey, under his will, dated the
24th of November 1812. Mrs. Maria Hunt was administratrix
with this will annexed. Her husband, Charles Hunt, got possession
of the assets, and employed them in paying off the charge of £3650,
and he got the judgment satisfied on the roll. . In this state of facts,
Miss Anne Pfeilitzer filed her cause petition, by the amended
prayer of which she prays that a declaration should be made, that
the said principal sum of £3650 was well charged by the said inden-
ture of the ^1 St of January 1824, on the lands comprised therein,
and that the petitioner was entitled to one moiety thereof. It is a
common equity, where an estate is put in settlement expressly sub-
ject to a charge, if the tenant for life pays it, to keep it alive for his
benefit ; and, of course, if he pays it out of assets, then to keep it
alive as an investment of those assets. Accordingly, by the decree
of the Lord Chancellor, dated the 6th day of December 1855, it was
declared that the said sum of £3650 was well charged, by the inden-
ture of the 1st of January 18^4, on the premises comprised therein.
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CHANCERY REPORTS.
301
and that the petitioner was entitled to half that charge, and the 1861.
usual consequential directions were given by the decree. On that
hearing the infants appeared by Counsel (Mr. Brewster and another),
and they could not reasonably complain of the decree, which left
them all that was settled on them, viz., the estate, on their parents' Judgment,
death, subject to a charge of £3650, to be taken out of it ; of which
sum, however, they would be entitled, under the settlement of their
mother's property, to one moiety. The matter then was taken into
the Master's office, and the infant defendants did not appear there
by Counsel ; and the solicitor informs me that the Master directed
that they should not appear by Counsel — a sufficient intimation that
their rights were not to be prejudiced by the report or its conse-
quences. Their rights were clear, to get, on the death of their
parents, the estate, or its value, minus the charge of £3650.
Accordingly, the other parties in the same interest with the minors
did not generally appear before the Master at all. There was some
conflict of priorities in the Master's office, and the report is made up,
dated* the 18th day of December 1856, by which the Master finds
that all the mortgage and judgment creditors of Charles Hunt,
between the date of the settlement and the filing of the cause peti-
tion, were charges on the life estate of Charles Hunt, prior to the
said charge of £3650, under the settlement. I do not understand
the grounds of this report. It appears to me that the interest of the
sum of £3650 was not so properly called a charge on the life estate
of Charles Hunt, as a payment to be made, by the trustees, out of
the rents and profits of the lands, in priority to Charles Hunt's equit-
able life estate. Some stress was lajd on the fact that the judg-
ment had been satisfied. That does not appear to me to be a fact
of importance. The judgment was not entered up until after the
marriage settlement, and was not, of its own force, a charge on the
inheritance. It was a charge on Charles Hunt's life estate, and was
extinguished by its satisfaction ; but the interest on the £3650 was
a charge antecedent to Charles Hunt's equitable life estate ; and I
do not see how his creditors, not having any legal estate, could
remove that prior equity, nor how the report can be reconciled with
the decree declaring the sum well charged by the deed of the 1st of
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302
CHANCERY REPORTS.
1861.
L, E. Court.
Judgment.
January 1824. The petitioner Anne Pfeilitzer maj be bound
by that report, as she did not except to it ; but it was not intended
to prejudice the infants, who were substantially not permitted to
appear by Counsel in the office. The charge against them was
only under the deed of 1824; and that deed made, a provision for
keeping down the interest during Charles Hunt's lifetime ; and if the
owners of the charge, or the trustee for the owners, did any act by
which they were precluded from raising the interest off the life
estate, they must lose that interest altogether. The right of the
infants entitled to the estate in remainder to have a receiver, if
necessary, put over Charles Hunt's life estate, to keep down the
interest, or to compel the trustees to do so, was anterior to any
interest which Charles Hunt, or his assigns or creditors, could have
in the premises. The cause was then set down for final hearing,
the solicitor for minors having no reason to think that the decree
could possibly affect them; and none of the other parties in the
same interest appearing at all when the decree of the 6th of
February 1857 was pronounced, which, I think, is not consistent
with the rights of the infants, or other parties entitled in remainder,
or with the former decree of 1855. This decree directs the lands
to be soldy and the life estate, and the inheritance after the life
estate (that is, the reversionary interest), to be valued respectively,
and that, out of so much of the produce of the sale as represents the
life estate, the arrears of the annuities, and the several charges on
the life estate, shall be paid according to their priority, and that, oat
of so much of the produce of the sale as shall represent the in-
heritance, the sum of £3650. shall be paid. I think the infant
inheritors have a just complaint against this latter clause, of which
the full effect, coming, as it did, by surprise, was probably not com-
prehended at the time by the parties. Its effect obviously is to make
the remainderman pay all the interest which shall accrue on the
sum of £3650 from the time of the sale, during the life of Charles
Hunt. The estate for life obviously does not bear it ; for its value
is distributed among Charles Hunt's creditors. The owners of the
charge do not lose it ; for, as they get the principal now, that is
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CHANCERY REPORTS.
303
1861.
X. £. Cowrt.
In re
hunt's
ESTATE.
the same thing as if the charge was delayed and bearing interest ;
the remaindermeni therefore, bear the loss. An example in figures
will show this. Suppose the life estate and the inheritance in
remainder were each worth £3650, then, if the trusts of the deed
of 1824 were carried fairly out, the owners of the inheritance would Judgment,
get, on the decease of Charles Hunt, the sum or value of £7300,
subject to a charge of £3650 ; that is, they would get £3650 net,
or, if the payment were made now, the debt would be paid out of
the entire fund, and the balance settled so as to come to them at
the proper time ; or, instead of the whole being settled, the value set
apart to represent the inheritance should be such a sum as, if put
out to compound interest during the lifetime of the tenant for life,
would, according to the average duraticm of human life, accumulate
to the entire net value of the estate ; but, in the case I have put, the
decree would give the inheritors nothing ; the entire of the £7300
would be thus spent. One sum of £3650 would be paid to the cre-
ditors of the life estate, and another sum of £3650 would go to pay'
the charge placed on the estate by settlement. I conceive that, sup-
posing the Master's report to stand, the decree ought either to have
directed the money that represents the value of the inheritance to
be invested during the lifetime of the tenant for life, and, on his
decease, the sum of £3650 to be paid, without interest, out of the
accumulated fund ; or it should have taken the present value of a
sum of £3650, payable on the decease of Charles Hunt, and directed
that sum only to be now paid out of the fund representing the inhe-
ritance. Either of these decrees would be just, and consistent with
itself. The existing decree is inconsistent ; for it deprives the peti-
tioner of all past interest, and yet substantially charges all future
interest against the reversionary estate. The same injustice is done
by throwing ^1 the costs upon the value of the reversionary estate.
Inasmuch, therefore, as I think that the infant defendants were taken
by surprise, and suffer seriously from the decree, I shall, for the
present, retain the money, in order to give them an opportunity of
commencing such proceedings as they may be advised to take for
the purpose of obtaining redress in Chancery. . If they cannot
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1861.
Z. E. Court.
y ^— '
In re
hunt's
ESTATE.
Judgment.
304
CHANCERY REPORTS.
succeed in altering the decree, I must pay out the value of their
inheritance, in obedience to its provisions.*
* A motion was made on the 20th of April, by Mr. Brewster , for a re-hearing;
bnt, under the drcnmBtances of the case, the final decree having been made,
and Miss Wallace being a purchaser after the making thereof, and not haying
been a party to the proceedings in Chancery, the Lord Chancellor refused the
motion without costs.
In the matter of the Estate of
Feb.25. ^^^ Trustees of TIMOTHY TURNER, Oumers and Petitioners.
March 2,
S. S., a lessee Xhe absolute order for sale in this estate comprised, amongst others,
of certain pre-
mises, for 125 certain premises in Lower Mount*street, in the city of Dublin, held
years from the
25th of March under a lease, dated the 21st of July 1787, and made between Sam-
1782, by a
lease, dated uel Sproule, of the one part, and Edward Heam, of the other part,
July 1787. and for the term of 120 years from the 25 th of March then last past,
ed **the^'usual *°^» ^^*®^ ^** ^**®» during the residue of the term, at a yearly rent
teSTand Irt o^ ^^6. 98. 7d., late currency. The material facts of the case appear
entry, deimsg in the judgment. The owners insisted that the premises should be
^•» ^**5^ ^^ sold discharged from the payment of any rent during the residue of
25th of March ^he term, on the ground that S. Sproule having made the lease,
thenlast past » 6 re
Twenty-two without retaining a reversion, the rent thereby reserved was not a
years' arrears
of rent accrued conventional rent ; and, therefore, the case not coming within the
due to the re-
presentatives principle of Grant v. ElliSt the right to recover the rent was barred
the last-men- ^J ^^^ ^^ section of the Statute of Limitations (a), no rent having
though 8. 8.
had no reyer- Mr. R. R. Warren^ for John and Phineas Riall.
sion expectant
on the deter- Grant v. Ellis (6) was decided on two distinct grounds, either of
mination of
the said lease of the 21st of July 1787> jet that the rent reserved by the said lease
was a conventional redt, and that, therefore, the right of the representatives of S. 9»
to ihe rent during tiie residue of the term was not barred by the 3 & 4 W. 4, c. 27>
s.2.
(a) 3 & 4 W. 4, c. 27.
(6) 9M. AW. 113.
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305
which was sufficient to support the decision : firstly, that from the 1861.
word ** recover/' in the statute, the Legislature did not mean to * '
apply it to conventional rents of any kind ; and, secondly, that there
was no estate in the rent, but in the reversion, in that case. If the
first ground were sufficient to support the decision, it is applicable Argument,
to this case, which is a conventional rent, although no reversion
exbts.
He also cited DcUy v. Bloomfield {a) \ Jack v. 3PLoffhlen (Jb) ;
Crosbie v. Sugrue (c) ; Manning v. Helps {d) ; Shannon v. Hod-
der {e) ; Skiel v. Incorporated Society (f). He also argued on the
analogy of tithes, and the decisions thereon, and cited Dean of Ely
Y. Bliss (ff).
Mr. Tuthillf for an incumbrancer, relied on the case having been
decided by James v. Salter (A), and that there was no reversion, and,
therefore, no relation of landlord and tenant : Pluck v. Digges (t) ;
and that the estate in this case was in the rent, which was a rent-
charge, and, therefore, within the 2nd section of the Act.
Mr. Ince^ for the owners.
DOBBS, J.
In this case, Samuel Sproule, by a lease, bearing date the 21st of
July 1787, demised certain premises in the city of Dublin to Edward
Hearn, to hold to him, his executors, administrators and assigns,
from the 25th of March then last past, for the term of 120 yeara, at
a pepper-corn. rent, to the 29th of September 1789, and, after that
date, during the residue of the term, at the yearly rent of £16.
9s* 7d., Irish currency. The lease contained a clause of distress ;
and, if no sufficient distress, a proviso, in these words, ^^ that it
should be lawful for Samuel Sproule, his executors, administrators
March 16.
Judgment,
(a) 5 Ir. Law Bep. 65.
(c) 9 It. Law Ecp. 17.
(e) 2 Ii'. Law Rep. 223.
is) 2DeG., BLAG. 459.
(6) 1 Jr. Com. Law Bep. 186.
(<0 lOEx. Bep. 59.
(f) lOIr. £q. Bep. 411.
(A) 3 Bing. N. C. 544.
(i) 5 BH. 31 ; S. C, 2 D. & C. 180.
VOL. 11.
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306
CHANCERY REPORTS.
1861.
X. E, Court.
^— y ■ ^
In re
tubnbb's
ESTATB.
Judgment,
and assigns, into the premises to re-enter, and the same to have
again, re-possess and enjoy, as in his or their first and former
estate, anything herein to the contrary notwithstanding.* The lease
also contained a covenant by Edward Heam to pay the rent. The
lessee's interest under this lease afterwards became vested in the
owners in this matter, and is now to be sold in this Court. Samuel
Sproule, at the, time he made the lease of 1787» held by a lease
of 1782, for 125 years from the 25th of March 1782 ; so that the
effect of the lease of 1787 was to leave no reversion in him. Samuel
Spronle's interest came, by mesne assignment, to a Miss Roberts,
and, being a chattel, is now vested in her legal personal representa-
tives. It appears from the evidence, and is admitted, that there has
been no payment of the rent of £16. 98. 7d. to Miss Roberts, or her
representatives, for twenty-two years ; and the parties interested in
the lessee's estate claim to hold the premises during the residue of
the term, discharged of the rent, on the ground that, it being only a
rentcharge, the 2nd section of the statute 3 & 4 IF. 4, c. 27, applies
to it, and, therefore, is extinguished by the joint operation of the
2nd and 34th sections of that statute. The lessor's representatives
have filed a claim, by which they admit that Samuel Sproule, at the
time he made the lease of 1787) had no reversion ; but, nevertheless,
they claim to be entitled to the rent, because, notwithstanding thej
have no reversion, yet the 2nd section of the statute is inapplicable
to such a rent, although admitted to be only a rentcharge. Now, if
Samuel Sproule had reserved to himself a reversion of but one day.
It is clear that the decision in Grant v. Ellis would have been appli-
cable to this case ; and' the rent, being what is there termed a
conventional rent, would not be within the meaning of the word
'' rent," in the 2nd section. On the other hand, if it were a rent-
charge which Samuel Sproule, as possessed of a term of years in
land, had charged upon the term in favour of a grantee, with a
power of distress, such grantee's estate in the rentcharge would be
extinguished, by his allowing twenty years to elapse without a
payment, or acknowledgment of his right. James v. Salter^ and
subsequent cases, may be considered as authorities for this position.
The doubt in the present case arises from the circumstance that the
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deed of 1787 is in terms a demise reserTing rent, in the words gene-
rally used in, and applicable to, a lease where the relation of land-
lord and tenant is intended to subsist immediately on the execution
of the instrument, and also contains a power of distress and re-entry
applicable to that relation; while, from there being no reversion,
the relation of landlord and tenant has not arisen, and does not
exist. Pluck V. Digge$ declares that, in construing the word
•* landlord" in the statute 25 (r. 2, c. 13 (Tr.J, it must be held that
a person who had no reversion was not a landlord, within the
meaning of the Act, as there is not the relation of landlord and
tenant without a reversion. But that does not affect the question
in this case. Here the question is, whether a rent may not be such
a conventional rent as has been held not to be within the meaning
of the word *' rent,"* in the 2nd section of the last Statute of Limita-
tions, although the person entitled to the rent has no reversion, and
consequently, there is not, strictly and technically, the relation of
landlord and tenant ; and, whether the rent in this case is such a
conventional rent, I am of opinion there may be such a conventional
rent without a reversion, and the relation implied therefrom, and
that the rent made payable by the deed of 1787 is such a rent.
The grantee of a rentcharge may have a clause of re-entry in the
instrument creating the rent ; but the wording of such a clause is
quite different from the clause of re-entry in the deed of 1787 ; and
in leases where the parties intend the relation of landlord and
tenant to be created by the instrument. In the former cases, the
power of re-entry is confined to entering and holding the lands until
the arrears are satisfied ; and, if the grantee enter, the only interest
he can have in the lands is a chattel interest of indeterminate dura-
tion, until the arrears are satisfied. The estate of the grantor he
never can acquire; but, in the latter cases, the re-entry of the
lessor is, by the terms of the proviso, to restore him to his former
estate; and, if he enters, he is in of and for his former estate.
Now, the case of Doe d. Freeman v. Baieman (a) expressly and
clearly decides that, where a termor for years demises lands for
1861.
L. E, Court.
Judgment.
(a) 2 B. ft Aid. 168.
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308
CHANCERY REPORTS.
1861.
X. E. Court.
In re
turner's
ESTATE.
a term co-ezteosive with his own, i^eserving rent, with a proviso
for re-entry, he may, on entry for condition broken, recover the
possession of his former estate in the term, although he has no
reversion. That is this case. J. Sproule, or his assigns, conld
Judgment, recover the possession of the lands, as of his former estate, on
entering for condition broken. If so, how does the rent in this
case differ from the conventional rents to which the statute has
been held not to apply? It is a rent, by agreement between the
parties, to be paid as a conventional equivalent for the right of
occupation of the land ; and, if not paid, the party entitled to it
can recover the possession of his old estate in the lands. It is
true this estate is not a reversion ; but it is a possibility of reverter,
not separated from the right to recover the rent, and which has
exactly the same capability of being turned into the possession
of the former estate that a reversion hits. Such a rent is, therefore,
in my opinion, a conventional rent, as much as if there were a
reversion instead of the possibility of reverter, and, as such, is
not within the 2nd section of the statute; and I cannot help
thinking that Lord St. Leonards had in his mind such a conven-
tional rent without a reversion, when he used the words reported in
p. 472 of 2 2>tf G., M. ^ (?., in the case of The Dean of Ely v.
Bliu. . He says : — *' I think it clear, from repeated consideration
of it, that refU^ in the sense in which it is spoken of in the 2nd
section^ means rent of inheritance, and that it does . not mean
rent reserved by a lease, for example, or rent in the common and
ordinary form of a render of rent for property." This is the opinion,
on repeated consideration, of the best and most experienced real
property lawyer of' the age; and it seems to me plainly to refer
not only to rent reserved by a letoe where there is a reversion,
but to rent generally, when made payable as a render of rent
for property. The cases as to tithes, referred to by Mr. fVarrem,
show that the operation of the statute, even in the case of tithes
(which, by force of the 1st section, are included {n the meaning
attached to the word '* land," in the 2nd section), is confined to cases
where there are two parties, each claiming an adverse estate in
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CHANCERY REPORTS.
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ESTATE.
Judgment*
the tithes; and the construction mast be the same as to *' rents ;** 1861.
and in the case before the Court there are two parties, each -^ — ^v ''
claiming an adverse estate in this rent, untied^ as that estate is, with tubner's
the power, in the case of a breach of condition for the non-payment
of the rents, of recovering possession of the land for the original
estate of the lessor therein. For these reasons, I am of opinion
that the claim must be allowed; but, as the question is one of
considerable doubt, and does not appear to have been expressly
decided, and as it has arisen by reason of the locket of the person
claiming the rent, in lying by for twenty-two years, I allow the
claim, without costs.
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310 CHANCERY REPORTS.
1861.
RoUs.
SIM V. SIM.
F^. 8. 9. 13, fin the Rolls).
16.
Apnl 16.
No predM In November 1843, the petitioner, Alexander Sim, sen., and the
sary to-consti- respondent, Ale^nder Sim, jun., entered into partnership, as com-
am^ wtU^*^ merchants. The terms of the partnership were, that the petitioner
partnerrfiip ^^ ^ ^^ entitled to one-sixth, and the respondent to five-sixths
An aoconnt of the profits. The business of the firm was carried on at Glasgow,
drawn np in
the handwrit- in Scotland, and at a place called Colooney-mills, in the county of
ing of ono
partner, A, Sligo, in Ireland, until September 1848, when a new arrangement
%r tL dis- was entered into, by which the petitioner was to be entitled to
^J^^^pJ**® one-third of the profits. The petitioner alleged that the new
■ete ^of'^ttie"" ^rangement was entered into by way of concession to him, in
Sm fth*^ ^^^^ ^ induce him not to press for a dissolution of the part-
solution, and nership, and payment of his share of the profits. The respondent
cess of the alleged that the arrangement was entered into as a favour to the
assets oyer the
original capi^ ^petitioner, who was about to be married. The partnership was
tal, as repr&-
sentmg the carried on on the new terms from the 18th of September 1848
balance of pro- • * .
fit over loss until the 18th of September 1849, when the petitioner entered
^yiujgactions ^^^ * partnership with Andrew Hozie. On the occasion of the
iMnioTO?dmwn ^dissolution of the partnership, an account was drawn up, and signed
SSrtnw, ^ ^y *^® partners on the l7th of September 1849. On the same
the amount ^y^ ^^ following letters were written by the respondent:—
^^ ^ ^ " Colooney, 17th of September 1840.
count A, after «< Gentlemen — I accept of your offer for the lease of Dromahair
ciTing credit
for various mills, &c., on the terms mentioned on the other side ; and, with
payments
made to him reference to my letter to your Mr. Alexander Sim, jun., of this
by his co-
partner, B, after the dissolution, struck a balance aeainst himself, and whidi
account was assented to by B^Held, a stated and settied account, Uiough some
debts due to tiie partnership were omitted as uncertain, v
A party seeking to impeach or surcharge and ftilsify a stated and setUed account
must state the fraud or error on which he relies, in the petition.
If a partnership be admitted, the books are admissible in eyidence, in taking the
account of the partnership transactions ; but tiie books of A are not admissible
against B to prore a partnership, if it be denied.
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CHANCERY REPORTS. 311
date, regarding his interest in the business carried on in my name 1861.
JRolU.
here and at Glasgow, since 4th of November 1843, / hereby agree, > — -^ '
SIM
in consideration of his said interest not being settled vp cU present, ^^
to advance, by cash or by my acceptance, or otherwise, an amount ^^*
not nnder £2000, as the same may be required by you, to enable Statement.
you to carry on the business at the said milL
'* I am yours, respectfully — ^Ai^ex. Sim."
" Say £2000.
" Messrs. Alex. Sim, jnn., and Andrew Hozie."
" Colooney, 17th of September 1849.
" Sir — ^I have this day placed to the credit of your account in my
boohs the sum of £1000 sterling, being to account of your interest of
one-.sixth in the business carried on in my name here and in Glasgow,
from 4th of November 1843 to 18th of September 1848 ; and your
interest at one-third in the same firm, from 18th of September 1848
to this date. I engage to have all the boohs connected with the busi-
ness brought tq> and balanced with the least possible delay ; and
when the remaining sum due you is ascertained, it will be placed to
the credit of your account. It is understood that yon give every
assistance in your power in having the accounts here and elsewhere
brought to a close, and that you have no further interest in said
business from this time henceforth.
*' I am. Sir, your obedient servant — Alexander Sim.**
" To Mr. Alex. Sim, jun."
On the 1st of September 1857, a further account was drawn up
by the petitioner, in his own handwriting, by which a balance was
found to be due by the petitioner, of £35. 5s. 9d. The accounts set
out the assets of the firm, consisting of stock on hands, debts, &c.,
existing at the date of the accounts respectively, and contained a
debtor and creditor account ; and a balance was struck. The
accounts were very long ; but, for. the purpose of this report, the
result of them is sufficiently explained in the judgment of the
Master (infra, p. 312, note), and in the judgment of the Master
OF THE Rolls.
The petition was filed in the month of March I860. It
prayed for an account of the partnership which was carried on
from 1843 and 1849; and also of another partnership entered into
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312 CHANCERY REPORTS.
18Q1. between the petitioner and the respondent in 1859. It did not in
^^-v "^ any way refer to the accounts of 1849 And 1859, or make a case to
SIM
^^ surcharge and falsify any item therein.
SIM. The matter having been referred to Master Litton, under the
Staiemeni. 15th section of the Chancery Regulation Act, the petitioner, by his
discharge, relied on the accounts of 1849 and 1857, as stated and
settled accounts. As to the transaction of 1859» the defence made
by the discharge was, that there was no partnership, and that the
petitioner merely acted as the respondent's agent ; and in support of
it produced a letter written by the petitioner, on the 3rd day of
August. The only evidence of the partnership produced by the
petitioner was the books containing the trapsactions in respect
of which the partnership was alleged to exist.
The Master, by his decretal order, dated the 20th of December
I860, declared that the petitioner was entitled to an account of the
partnership from its commencement, on the 4th of November 1843
until its dissolution, on the 18th of September 1849; and that he
was also entitled to an account of the dealings and transactions
in relation to the limited partnership in 1859.*
*The Master deliyered the following judgment: — "The anthorities which
haye been relied on by the respondent (and all the leading anthorities apon the
subject have been dted) quite establish the propositions upon which his Counsel
baye relied : —
'* Firstly ; yiz., that, if an account be otherwise settled, the resenrations of an item
or items for further arrangement or discussion will not take from it its character
of finality, or preyent it from being considered as a settled account.
' ' Secondly ; that an account, once admitted, cannot be opened, on the ground that
no party had adequate means of ascertaining whether it was erroneous or not,
without charging specific acts of fraud.
'* Thirdly ; that, when persons haye mutual dealings, signing the account is not
necessary to make it a stated one,; but keeping it any length of time, without
making an objection, will suiOSce.
*< Fourthly ; that, if a merchant keeps an account by him for two years, without
objection, it is considered as a * stated account. '
*' The question then is, whether the accounts which haye been settled, or wbidi
are relied on as settled accounts by the respondent, being the exhibits Nos. 1 and
2, come within these principles, and whether they are goyemed by them ? I am
of opinion that they do not come within these principles, and are not goyemed by
them. In my opinion ihey do not present a partnership account at all ; nor do Uiey
afiect to present a partnership account
** A partnership account, purporting to be a final settlement between the part-
ners, to be complete, must contain, ftrrtty, the capital account; secondly, ihe
profit and loss account; thirdly, the balance account ; fourthly, a separate aocoimt
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CHANCERY REPORTS. 313
From that order the respondent appealed. The statements in the 1861.
Rolls.
petition and discharge are fuUy stated in the judgment of the Mas- ^
SIM
V,
SIM.
TEB OF THE RoLLS.
Mr. F. W. Walsh and Mr. Rickey^ for the petitioner.
Mr. Brewster^ Mr. Hemphill and Mr. Dowse^ for the respondent.
For the petitioner it was contended, in support of the Master*s
order, that neither of the accounts of 1849 or 1857 was a stated and
settled account, and that it was not necessary, therefore, either to
notice them in the petition, or to state any ground for surcharging
for each of the partners, showing what cash and goods each has drawn out of the
•concern daring the period of the account. No. 1 should show the capital in hands
at starting; No. 2 (showing the net profits) should be added to No. 1. No. 3
(lowing the net amount of property, oyer liabilities, at date of dosing) should be
preciselj equal to the amount of Nos. '1 and 2. But the exhibits Nos. 1 and 2
profoss to be merely an abstract of the balances found in the books at the date of
dosing the partnership ; therefore, even if correct, forming only one ingredient in
the items of which a partnership account must of necessity be composed. No such
account can possibly be correct, unless thoroughly tested by the combination of the
aboye-named thret accounts. But, on referring to the books, I find that, if the
books are correct, these exhibits are manifestly and palpably incorrect, differ-
ing widely from the books, omitting many balances, and incorrectly quoting
others. Besides, the ledger is quite in an unsettled state, showing seyeral large
properties unaccounted for, which, if properly brought to a dose, would greatly
affect the relatiye interests of the partners.
" Those accounts amount to a yeiy large sum ; and the undosed accounts are yery
numerous. It is impossible that justice can be done until a true account of the
profits and losses be made out. The following items of profit, for instance, appear
to me not to haye been accounted for : —
The Indian com account
Commission account
Consignment p«r " Maria " ,
Sligoshop ,
Seyeral consignments, upwards of
Indian meal
" In a correct partnership account, these profits must be accounted for by the party
through whose hands they come. The exhibits Nos. 1 and 2 are also altogether
defident, in not containing a separate personal account, showing what each party
has drawn out of the concern during the partnership. These exhibits purport
simply to show the excess of tiie assets oyer the liabilities, and would seem
intended to conyey that each party was now entitled to his portion of that excess ;
but in fact same should only go to his credit, against whatsoeyer sums he had pre-
yiously drawn thereout ; and it might turn out that he had drawn in excess of his
share of the profits.
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314 CHANCERY REPORTS.
1861. and falsifying them, as the rule which required that to be done
V— V ' applied only to stated and settled accounts : Irving v. Young (a) ;
^ and they relied on the partnership books as clearly showing that a
SIM. partnership existed in 1869. The respondent's Counsel relied on
Argument. ^^^ accounts as stated and settled accounts, and relied on the rule
established by Dawson v. Dawson (b) ; Johnson v. Curtis (c) ; PiU
V. Cholmondely {d)\ Gray v. Minnethorpe (e) ; Lord Harduneke v.
Vernon (f) ; Drew v. Power (g) ; Stupart v. Arrowsmith {h) ; Ticket
(a) 1 Sim. & St. 333. (6) 1 Atk. I.
(c) 3 Br. C. C. 266. (rf) 2 Ves. 5/^.
(0 3 Ves. 107. (J) 4 Ves. 411.
{g) 1 Scb. k Lef. 182. (A) 8 Sm. & 0. 17a
** Haying reference to all these focts, it is eyident that exhibits Nos. 1 and 2
cannot possibly show the tme position of either party, as regards their respectiTe
interests in the estates; and that, if the accounts were properly closed, and die
books balanced, the result would almost certainly be widely different from that
shown in exhibits Nos. 1 and 2; and, therefore, no partnership acconnts whatsoerer,
and nothing like a partnership account, has been taken or rendered. It follows
that these exhibits prevent no bar to the taking of a regular partnership aocoimt,
and that it was not necessary, to point out, either in the petition or in the diaige,
errors, omissions or mistakes, because the exhibits themselyes do not even profess
to present the account to which one partner is entitled as against another; and, so
as settled accounts of a partnership concern, they amount to nothing ; nor, as
they are framed, could they be the sabject of corrections, by reason of errors or
omissions ; for they do not deal with a partnership account at all ; nor yet does
the account of exhibit No. 3. These yiews refer to the partnership existing from
1st of September 1843 to the 17th of September 1849; as to which the usual part-
nership account must, in my opinion, be taken.
'< As to the transaction of the year 1850, the subject of which was the caigo by
the ' Egeria/ 1 am of opinion that petitioner was not a mere agent. I think the
letters which passed between the parties in relation to same do, with the other
facts and drcumstauces of the case, go to establish a partnership in 1859. That
a large quantity of white wheat must haye been obtained, for the purpose of mix-
ing with the red wheat, which was supplied by the respondent, seems certain; that
such white wheat was supplied by the petitioner, who was to superintend the
grinding, seems dear. It is alleged that the respondent supplied all the money
necessary for the purchase of the white wheat ; but such fact is not made oat.
"Therefore, upon the entire of the transactions and correspondence, I haye
arriyed at the opinion that there was a partnership in relation to the red and
white wheat concern, and that an account must be taken accordingly. Indeed, if
it were otherwise, still, as some account must be taken to wind up the transaction
of 1859, 1 do not see that any account more adequate for that purpose than a
partnership account could be taken. As to the Statute of Limitations, I do not
think that either it, or the time which has elapsed, presents a bar to the right to
these accounts. Frame a decretal order pursuant to these luiings."
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CHANCERY REPORTS. 315
V. Short (a); Darthez v. Lee{b)\ Sumner v. Thorpe {c); that it 1861.
RolU,
IS necessary, id order to impeach, to state m the bill matter to snr- ^ *
SIM
charge and falsify them.
SIM.
The Master of the Rolls. Am-ine.
A motion has been made in this cause, on the part of the re- ^^^dgmwt,
spondent, that the decretal order of E. Litton, Esq., the Master in
this matter, signed the 20th of December I860, be set aside, and
that the petition be dismissed with costs ; or, in case the Court
should be of opinion that the petitioner is entitled to any relief in
respect of the partnership which was dissolved in 1849^ that the
two accounts in the notice mentioned, dated in 1849 and 1857,
should be deemed conclusive between the petitioner and respondent ;
and that the accounts in respect of the said partnership should be
limited as in the notice of motion mentioned ; and with respect to
the limited partnership alleged by the petitioner to have been
entered into between the petitioner and the respondent in 1859)
the notice of motion seeks that the Court should declare that no
such partnership existed.
By the decretal order of the Master it is ordered, first, that
the petitioner is entitled to an account of the dealings and trans-
actions in relation to the partnership between the said petitioner
and the respondent, which was entered into upon the 4th of
November 1843, and was dissolved on the 17th of September
1849; and secondly, that the petitioner is entitled to an account
of the dealings and transactions between the petitioner and re-
spondent, relative to the limited partnership entered into between . *
the petitioner and the respondent in the year 1859, in the cause
petition mentioned; and consequential directions are then given
by the order.
The two branches of the case are quite distinct, and involve
different considerations. The defence to the first branch of the
case, which I shall state more fully just now, is that, after the
partnership between the petitioner and respondent was dissolved,.
(a) 2 Vm. 289. (6) 2 Y. & CoL, Ex., 5.
(c) 2 Atk. 1.
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316 CHANCERY REPORTS,
1861. in 1849) an account was drawn up in that year by the petitioner
> r-L^ (all of which is in his own handwriting), ascertaining the balance
SIM
^^ due to the petitioner in respect of the said partnership; and a
siii. further account was drawn up by the petitioner, in his own hand-
Judgment, writing, in the year 1867, correcting some errors in the first account,
and striking a balance; and the respondent contends that such
accounts are to be considered as stated and settled accounts, or
that the latter account is, at all events, to be considered a stated and
settled account. The petitioner has wilfully suppressed from the
petition all allusion to the said accounts, and has not put in issue
any matters to show that they should either be set aside, or liberty
given to surcharge and falsify them. The Master has, by his order,
in effect set aside the two accounts, and directed a general account,
after the lapse of many years. I am of opinion that the Master's
order is erroneous in having directed a general account in respect
of the partnership which was dissolved in 1849, the accounts of
1849 and 1857 not having been put in issue by the petition, or
any ground stated in the petition why those accounts should be set
aside.
As to the second question which arises, the Master has decided
that there was a limited partnership, in the year 1859, between the
petitioner and the respondent. But his decision is founded in pari
on the petitioner's own books, which were clearly not evidence
against the respondent on the question whether there was or was
not a partnership in that year, the respondent alleging that, in
respect of the transactions in that year, the petitioner acted only
as his agent.
The petition states the formation of the partnership between the
petitioner and respondent in November 1843; the petitioner being
entitled to one-sixth, and the respondent to five-sixths of the profits.
The latter part of the fourth paragraph of the petition states what
I consider to have been a very improper allegation, having regard
to the facts of the case, that ** No statement or settlement of the
accounts of the partnership was come to between the petitioner and
Alexander Sim " (the respondent).
The petition then states the mode in which the business was
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CHANCERY REPORTS. 317
carried on, the respondent residing at Glasgow, and the petitioner 1861.
at the Mills of Coloonej, in the countj of Sligo. The petitioner i_ ^ ' »
states that the respondent retained in his possession all the books, '^
&c, and that the petitioner was unable to obtain accnrate infer- sim.
mation as to the partnership accoonts. That statement is not, in j^Hd^^u
mj opinion, sustained by the evidepce. The petition then states
that, in the years 1846 and 1847, the respondent embarked in large
speculations in grain, on his own account, during which he incurred
heavy losses ; and, to meet his liabilities on this account, he applied
large sums of money connected with and arising from the partnership ,
business. If there is any truth in this statement, which is wholly
denied by the respondent, all the partnership books were lodged in
the Master's office since, I believe, the month of June last, and the
petition might have been amended, and the items put in issue. At
the hearing of this appeal, Counsel did not refer to any item in the
books in support of the statements^ except as I shall hereinafter state.
The petition then states that, in consequence of these losses, the
petitioner insisted that the partnership should be dissolved, but the
respondent requested that the connection should not be broken off;
and he proposed that the petitioner*s share in the co-partnership
should be increased to one-third ; and the petitioner refers to a let-
ter of his, of the 15th of August 1848, and the respondent's reply
thereto.
The petition then states that the partnership was carried on, on
the new terms, from the 18th of September 1848 to the 18th of
September 1849, when it was dissolved ; and that the petitioner
then entered into partnership with a Mr. Hozie. The petition
suppresses altogether the fact that an account was then drawn up
by the petitioner himself, in his own handMrriting ; and the petition
states (paragraph eleven), that the petitioner insisted on a settle-
ment of his accounts with the respondent, and the payment of the
sum of money which might be found due to him upon such settle-
ment. But the said respondent, as the petition states, on that
occasion also avoided coming to any settlement, assuring the peti-
tioner that, after the large losses which he had sustained, he could
not then pay. the amount which might be found due. But the
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Judgment.
318 CHANCERY REPORTS.
1861. petition states tbat the respondent promised to advance to the peti-
_3 ^ ' tioner a sum in cash, or bj his acceptance or otherwise, of not less
^^^ than £2000, on account of the sum which on the ultimate settlement
SIM. of the accounts should appear to be due ; and that the respondent pro-
mised to wind up the partnership accounts with all possible speed;
and the petitioner refers to two letters of the 17th of September
1849, the one to the petitioner and the other to the petitioner and
the said A. Hozie, but suppresses the account drawn up bj himself
in September 1849. I think, howeyer, that those letters establish that
the account of 1849 was not a stated and settled account. The peti-
tion their proceeds, to paragraph 19 inclusiye, to refer to certain
matters connected with the acceptances and sums paid pn account
in respect of the balance claimed by petitioner on foot of the part-
nership ; but suppresses all allusion to the account drawn up bj
himself in 1857* striking a balance. The rest of the petition relates
principally to the alleged limited partnership in 1859^ which part
of the case I shall hereafter advert to.
It appears, from the discharge of the respondent, that the state-
ment in the petition that the respondent retained in his possession
all the partnership books, &c., is not correct ; for some of the part-
nership books were kept at Colooney by the petitioner, or by clerks
employed by him ; and other books of account of the partnership
were kept at Glasgow by one John Thom, a book-keeper in the
employment of the firm ; and the discharge states that, previous to
the dissolution of the partnership in September 1849» all the part-
nership books and accounts, which had been previously kept at
Glasgow, were brought over to Colooney by the said J. Thom and
by the respondent; and the petitioner and 'Thom, to the respondentia
knowledge (he having been himself at Colooney), carefully examined
all the books and accounts of the partnership so kept at Glasgow,
and also those kept at Colooney by himself; and the respondent saw
the petitioner and the said Thom going over the said books together
at Colooney, in which they were occupied for about a week. The
respondent then states that he inquired from Thom whether he
and the petitioner had been particular in examining the accounts ?
and he said they had. Thom, however, is dead; and it is very
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CHANCERY REPORTS. 319
nnjast on the part of the petitioner to lie by for so many years, 1861.
and, as soon as the clerk is dead, whose evidence would have been »— ,^ ' *
so important, to bring forward the present suit, and make the very ^^^
improper statement in the seventh paragraph of the petition, that sim.
the respondent •' retained in his possession all the books of account, j^idoment.
papers and documents connected therewith (t. e^ connected with
the partnership) ; so that the petitioner remained ignorant, and
was unable to obtain accurate information as to the partnership
accounts." The discharge then states that the petitioner, by means
of such examination, obtained full and accurate information as to
the state of the partnership accounts, both at Glasgow and Colooney ;
and the petitioner, after the said examination of the said books, and
in the year 1849* made out from the said partnership books, in his
own handwriting, a detailed statement of the accounts of the i9aid
partnership, Which contains two columns, headed respectively Co-
looney and Gksgow, in which columns are entered, opposite each of
the items in said statement, a number referring to the books kept
at Glasgow and Colooney respectively, in which the particulars of
each of the said items appear; and the discharge refers to said
account in the petitioner's handwriting.
The discharge then states that the stock on hands of the said
partnership is valued in the said account at £10,056. 12s. 9d. ;
and the respondent refers to a paper in the handwriting of Thorn,
dated the 19th of September 1849> and at foot thereof is a memo-
randum signed by both the petitioner and the respondent, as follows,
^ The above is taken as correct." The seventh paragraph of the
discharge then denies the statement in the eighth paragraph of the
petition, that the respondent had, in the years 1846 and 1847,
embarked in speculations in grain upon his private account, or
that he had incurred losses, or applied large, or any, sums of money
arising from the partnership business, to meet the liabilities of the
respondent. No evidence has been read to me in support of this
statement in the petition. One entry was read, which is not put
in issue, that a part of the funds of the partnership were applied
in payment of a cargo of guano, purchased on the private account
of the respondent. But Counsel for the respondent stated that if
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320 CHANCERY REPORTS.
1861. any sucU matter had been put in issue, it could have been proved
^ ^, ' ^ that the sum so applied was replaced.
^^^ The discharge then states that the increase of the petitioner's
SIM. share of the profits from one-sixth to one-third was made because
Judgment. *^® petitioner was about to be married, and for no other cause
whatever.
The discharge then relies on the account drawn up by the
petitioner in 1849, and states that the petitioner being about to
commence business at Dromtihair Mills, the property of the re-
spondent, in partnership with A. Hozie, the respondent agreed
to credit, and did credit, the petitioner and A. Hozie with £1000,
in respondent's bboks ; and did also agree to advance by cash and
acceptance a sum of £2000, in order to give the petitioner a
capiXal with which to commence the business of the firm of Sim
^ and Hozie.
The discharge then explains a transaction adverted to in the
petition, relating to an acceptance for £1000, which the respond-
ent eventually took up, not to embarrass the petitioner and
Hozie.
The discharge then refers to some matters which, from the
view I take of the case, are not material to advert to ; and refers
to the particulars of the account of 1849, drawn up by the peti-
tioner. The discharge then states that the petitioner having
received large payments from the respondent, on account of his
share of the prints of the partnership which was dissolved in
, 1849, and retained the rent payable to the respondent for the
Mills of Dromahair for several years, the petitioner, about the
1st September 1857, made out a second account in his own hand-
. writing, of the business of the partnership : and the short result
of that account is this ; that the petitioner having credited himself
with Ute one-sixth of the profits on four seasons, from 1844 to
September 1848, and with one-third of the profits from September
1848 to 1st of September 1849, when the partnersHip was dissolved,
which profits amounted to a less sum than was stated in the account
of 1849, and having also credited himself with some other small
sums, and having debited himself with various sums, received
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CHANCERY REPORTS. 321
from the respondent to the 1st of September 1857, a balance is 1861.
RolU.
struck, in the petitioner's handwriting, hy which it appears that, ^^ ^ ^
SIM
on the Ist of September 1857, he was over-paid the entire of ^
the sum due to him on foot of the said partnership, by a sum of sim.
£35. lis. 9d. . JudgmeiU.
What justification there was, or is, for the petitioner suppress-
ing all reference to that account of 1857, in the petition, is not
suggested by the petitioner's Counsel ; nor do I understand on what
grounds the Master had authority to set aside the account of 1857,
drawn up by the petitioner himself, the account not having been
put in issue, either by the petition, or by an amended petition, or
any matter put in issue to show that it ought to be set aside, or
liberty given to surcharge or falsify it. The Master has decided
the case upon grounds not stated in the petition ; and the incon-
venience of such a course is this, that, on my calling on Counsel to
refer to the partnership books, and satisfy me that the accounts
of 1857, as drawn up, were erroneous, a notice was served, dated
the 12th of February, referring to about 127 numbers in the Colooney
ledger, to upwards of 100 numbers in the Glasgow ledger, and to
upwards of 50 numbers in other ledgers, making together upwards
of 270 numbers ; but Counsel for the petitioner were so entirely
uninstructed on the case, that they were unable to explain any one
of those numbers, or show how they falsified the account of 1857.
The discharge then explains the account of 1857*
The ground on which the Master has in effect set aside the
account of 1857 is this, that the accounts of 1849 and 1857, as he '
aUeges, do not present partnership accounts at all. So far as the
account of 1849 is concerned, the contemporaneous letters, I think,*
show that it was not a stated and settled account ; and it was, no
doubt, subject to be set right, as it was by the account of 1857 ; but
the Master considered the latter account as no partnership account,
because, as stated in his judgment, ** A partnership account, pur-
porting to be a final settlement between the parties, to be complete,
must contain, first, the capital account ; secondly, the profit and loss
account ; thirdly, the balance account ; fourthly, a separate account
for each of the partners, showing what cash and goods each has
VOL. 11. 41
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322 CHANCERY REPORTS.
1861. drawn out of the coDcem during the period of the account. No. 1
RolU,
^.^-v~«^ should show the capital in hands at starting. No. 2 (showing the
SIM
^^ net profits) should be added to No. 1. No. 3 (showing the net
8Uf. ^ amount of property oyer liabilities at date of closing) should be
Judyment precisely equal to the amount of Nos. 1 and 2. But the exhibits
Nos. 1 and 2 " (that is, the accounts drawn up in the petitioner's
handwriting in 1849 and 1857, and which, I believe, are numbered
1 and 5) *' profess to be merely an abstract of the balance found on
the books at the date of closing the partnership ; therefore, even if
correct, forming only one ingredient in the items of which a part-
nership account must, of necessity, be composed." The Master, in his
judgment, then states that, if the books are correct, the exhibits are
palpably incorrect — that the ledger is in an unsettled state, showing
large properties unaccounted for. The Master then states that it is
impossible that justice can be done, unless a true account of the
profits and losses be made out. The Master then states ^^ That
tlie following items of profit, for instance, appear not to be accounted
for ; " and the Master then states certain items, and then refers to
other objections. Now, the injustice of this course of proceeding
(which, in my opinion, is contrary to several decisions from the
time of Lord Hardwicke, to which I will just now refer) is this,
that if the accounts of 1849 and 1857 had been put in issue by the
petition, instead of being wilfully suppressed, and if the objections
stated for the first time in the Master's judgment had been relied
upon in the petition, as grounds either for setting aside the
account of 1857, or surcharging and falsifying it, the respond-
ent would have had the opportunity of answering the several
objections. I understand from Counsel, that the Master has con-
sulted an accountant, and acted on his opinion. The effect of the
Master's judgment appears to be this, that there was no stated and
settled account. He considers (adopting the opinion of the account-
ant) that, unless an account between partners be drawn up in
the precise form he suggests, that it is no account. I cannot concur
in that proposition, which was never, up to the present time, decided
in any case. According to the Master's opinion, if two partners,
having a general knowledge of their affairs, dissolve partner-
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CHANCERY REPORTS. 328
ship, and their books have not been kept with strict regularity, 1861.
showing the profit or loss on each particular transaction, and show- *_, , ' -■
ing, }n a general profit and loss account, the balance of profit over
loss, if there be a profit, that the partners must employ an account- sim.
ant, must have the accounts all made out, on the precise principle judgmau,
stated by the Master, and can come to no amicable arrangement
without the intervention of an accountant. Suppose two parties
were to draw up an account, stating the original capital, then
stating the realised or existing assets at the time of the dissolution,
and taking the excess of the assets over the o^ginal capital as repre-
senting the balance of profit over loss on the several transactions,
and then ascertaining the sums or property drawn out of the part-
nership by each of the partners, and the amount coming to each
partner ; such account, according to the decision of the Master, is
no stated or settled account, although drawn Up in the handwriting
of one of the partners, and admitted by the other to be correct. I
believe that was the course adopted in this case, except that some
debts due to the partnership were left out of the account, as it was
not certain whether they would be paid; but the respondent
has always been ready to account for debts received, and not in-
cluded in the sum which, on the account of 1857, was payable to
the petitioner. According to the Master's decision, although the
partner who draws up the account, in his own handwriting,
ascertaining the balance due to him, is paid such balance by his
co-partner, he is, at the end of ten or eleven years, to be at liberty
to file a petition for a general account, suppressing all reference to
the account, and not specifying a single item of surcharge or falsifi-
cation. Partners who annually pay Income-tax must be assumed
to have some knowledge of the state of their accounts ; but the
accountant, whom the Master has unfortunately consulted, considers,
I presume, that there can be no amicable settlement between two
partners, at the close of their partnership, without the expensive
process of employing an accountant.
Unless the Master be right, that the account of 1857 was not a
suted and settled account at all, it is, of course, impossible that' the
decretal order can stand ; because, if it was a stated and settled
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324 CHANCERY REPORTS.
1861. account, but is to be set aside (although drawn up by the petitioner
JRoik,
>— y ^ himself), for gross errors, or if liberty should be given to surcharge
SIM
and falsify the account, qn account of errors, the errors are not, for
SIM. the first time, to be stated in the judgment of the Court. They, or
Judgmeni, ^^^ ^^ them, should be put in issue, so as to enable the respondent
to show, by his answer, that there is no error. An affidavit in reply
to the discharge has been filed, by which the petitioner seeks to get
rid of the eifect of his having drawn up the accounts of 1849 and
1857 ; and he states, amongst other matters, that inasmuch as the
accounts *' were never intended to be anything but as a means of
ascertaining what amount, at the time, I had a right to expect from
the respondent, for the purpose of entering into a new partnership,
the objections were never, in fact, discussed between me and the
respondent, or made the subject of any accounts.'' This may be true
as to the account of 1849, but is wholly untrue as to the account of
1857; and the letters referred to by the petitioner do not, in my
opinion, establish or verify the allegation of the petitioner ; but the
letters and facta relied on by the petitioner ought to have been put
in issue by the petition, a:nd not by an affidavit in . reply, as has
been decided by the Court of Appeal. Many matters are stated in
the voluminous affidavits in reply, which do not appear to me to be
relevant to the. question which I have to decide; and that is, whether
the account of 1857 is to be treated as a nullity or set aside, or
liberty given to surcharge and falsify it, where the petitioner has
thought fit to suppress all allusion to it in the petition.
In the case of Dawson v. Dawson (a), it was decided by Lord
Hardwicke, ^'That where a petition is brought for a general
account, and the defendant sets forth a stated one, the plaintiff must
amend his bill, for the stated account is prima facie a bar, till
particular errors are assigned, to the stated account.'' The same
point was decided in Johnson v. Curtis (b) ; Lord Thurlow said,
^* The expression ' errors excepted ' did not prevent its being a
settled account ; and ihe balance being carried over showed it
was sOf and, therefore, the errors should have been pointed out"
Those observations are very applicable to the account of 1857.
(a) 1 Aik. 1. (6) 3 B. C. C. 266.
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CHANCERY REPORTS. 325
The decree at the Rolls, dismissing the petition, was accordingly 1861.
JRolU,
affirmed. The same point was decided in Taylor ▼. Haylin (a). < s^ — -^
SIM
Several of the cases are referred to in the note to Mr. Eden*$ edition.
V
The distinction between cases of guardian and ward, and other sim.
persons standing in a fiduciary relation, and cases where no fiduciary judgment.
relations exist, is adverted to in Pitt v. Cholmondley (6), and in
the important judgment of yice-Chancellor Wood, in Blagrave v.
RQuth{e). In the case of Drew v. Power {d)^ Lord Redesdale
stated : — *' One rule material to observe, in all cases of account, is,
that where there has been a settlement of account, and either the
account has been signed, or a security taken on the footing of the
account, a Court of Equity does not open this transaction and throw
it again between the parties, as if no such transaction |iad happened,
unljBSs the evidence which is produced (and that evidence founded
on eharges in the bill) shows the whole transaction to be so iniqui-
tous that it ought not to be brought forward at all to afiect the
party sought to be bound. If the account impeached be a settled
account, or if an instrument has been executed on the foot of it, the
Court expects that the errors should be specified in the bill, and
proved as specified ; otherwise it would be easy to overturn the
fairest accounts, and those settled in the most solemn manner, where
there happens to be any complication in their nature.**
Lord Eldon, in the case of Chambere v. Goldwin{e\ states: —
*' The law, as well as the act of the parties, provides that accounts
settled shall not be set aside but for fraud, or surcharged and falsi-
fied but for error.** *' The bill must either seek to set
aside those accounts, as imputing the settlement of them to fraud,
or, letting them stand, must seek to surcharge and falsify them ; in
which case, if they are to be considered settled and signed, the rule
is fixed, upon the most obvious principle, that some error must be
charged ; as it is impossible for the defendant to defend himself, if,
under a general charge, not specifying any error, the plaintiff may
come, at the hearing, with proof of those errors of which the defend-
(a) 2 B. C. C. 810. (6) 2 Yes. sen. 566.
(c) 2 Kay ft Johns. 509. (<0 I Sch. ft Lef. 192.
(e) 9 Vei. 265.
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Si
326 CHANCERY REPORTS.
1861. ant has heard nothing. The point was decided upon the ground,
JRolU,
'">, "' by Lord Thurlow, on my objection, that if accounts are impeached,
SIM
^^ on the ground of error, jou must specify some or one error, and
SIM. prove that ; and that is a ground to surcharge and falsify. I do not
Judgwunt. ifOCoUect a case in which the Court has gone the length of declaring
anything error, unless the declaration has been confined' to the sub-
ject of that which is alleged to be error upon the pleadings. That
would be attended with great inconvenience ; for it is very possible
there might be cases in which the opinion of the Court might be clear
at the hearing, that there was error; and yet, if it was distinctly
put in issue, the Court might be satisfied that transactions had
taken place, upon which it was impossible to consider it error."
These observations of Lord Eldon are very applicable to the
present case, in which the Master has relied on matters in his
judgment, not put in issue, and which, if put in issue, might have
been answered ; and when I called on Counsel to read for me the
proof of what was stated in the Master's judgment, th^y were
unaUe to do so. The case of Chambers v. Goldwin was referred
to and approved by yice-Chancellor Wood, in Blagrave v.
Rouih (a). There is much doubt whether the account of 1849 is to
be considered as a stated and settled account, having regard to
the contemporaneous letters. I think it cannot *be so considered ;
but I am of opinion that the account of 1857 is to be considered
prima facie as a stated and settled account ; and that the petitioner
having suppressed all reference to said account in the petition,
and having put no matters in issue to show that it should be set
aside, or why liberty should be given to surcharge and falsify the
account, the general account directed by the Master, as to dealings
and transactions in relation to the partnership between the peti-
tioner and the respondent, which was entered into upon the 4th
of November 1843, and was dissolved on the 17th of September
1849» should be set aside.
The notice of motion in this case was served on the 14th of
January 1861. It appears, from a notice served on the respondent^
on the 4th of January 1861, by the solicitor for F. Y. Meynell, Esq.,
(a) 2 Kay ft J. 523, 529.
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CHANCERY REPORTS. 327
that the petitioner, by indenture, dated the 26th of December 1861.
I860, assigned, by way of mortgage, to the said Frederick Villiers ^ — '
8IM
Meynell, Esq., in the county of Middlesex, Barrister-at-law, all ^^
sums of money due to him by the respondent, and all benefit of ^^^*
this suit, and of the order of the Master, to secure the sum of Judgment.
£1544. 4s. 5d. The suit is, therefore, defective, for want of parties,
as well as defectiye in the particulars I have mentioned ; and the
petitioner was not justified in serving notice of appeal, suppressing
that fact, as he has suppressed the other important parts of this
case. I shall, therefore, set aside the order of the Master, so far
as it directs a general account of the said partnership dissolved in
1849> I' do not order the petition to be dismissed, because the
petitioner may possibly be entitled to the account stated in the
notice of appeal. '
As to the second branch of this case; the question is, whether
or not there was a limited partnership between the petiti(mer and
and respondent in 1859? The Master has, by the decretal order,
declared that the petitioner is entitled to an account of the dealings
and transactions between the petitioner and the respondent, relative
to the limited partnership entered into between the petitioner and
the respondent in the year 1859. The respondent wholly denies
the existence of any such partnership, in the fifty-sixth paragraph
of the discharge. In a letter of the petitioner to the respondent,
of the 3rd of August 1859, he states, ^* I would act merely as agent
for you in the matter, that you might not have any trouble in the
matter." It is not necessary to go through the evidence on this
part of the case, as it appears to me that the petitioner has feuled
to prove satisfactorily a case of partnership in 1859, unless the
books of account of the petitioner be evidence. I have not heard
any ground suggested, on the part of the petitioner, why they should
have been admitted. If you once establish that there is a partner-
ship, partnership books are admissible in evidence; but where one
party denies that there was any partnership, I am at a loss to
understand on what principle the other party is to produce the
books to prove the partnership. Any person acting as agent for the
wealthiest merchant in the United Kingdom might, if such evidence
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328 CHANCERY REPORTS.
1861. was admisssible, make himself a partner. There are suspicioas cir-
v,,-v..'—^ cumstances coDnected with these books, adverted to by Mr. Brewster.
SIM
^^ X shall, therefore, declare that th^ said evidence was inadmissible ;
SIM. and I shall set aside the Master's order, so far as it directs an
Judgment, account in respect of the alleged limited partnership of 1859-
On the 25th of April 1860, the respondent made an affidavit,
under the Irish Bankrupt and Insolvent Act 1857, that the peti-
tioner was indebted to hip in the sum of £2020 ; and the effect
of directing the taking of general accounts in the Master's office,
which might not be disposed of for years, would be to have the
proceedings on foot of that affidavit suspended, as, the Bankrupt
Court probably would not, pending the taking of a general account,
allow proceedings to be taken on the said affidavit. No application
was made at the hearing to amend the petition ; such application
was not made, I presume, in consequence of the decision in M^Na-
mara v. Blake {a\ and the cases referred to in the judgment in
that case. I shall make the following order: —
Order. It is ordered, by the Right Honorable the Master of thk
Rolls, that the order of Edward Litton, Es(][., the Master
in this matter, bearing date the 14th of November, and
signed the 20th of December I860, be set aside, so far
as it directs that the petitioner is entitled to an account
of the dealings and transactions in relation to the partner-
ship between the said petitioner and the respondent, which
was entered into on the 4th of November 1843, and waa
dissolved on the l7th of September 1849; the Court being
of opinion that such general account should not have been
directed, having regard to the account of the 1st of Septem-
ber 1857, drawn up in the petitioner's handwriting, and
which account is not put in issue by the petition, nor anj
ground stated in the petition for setting aside the same, or
surcharging or falsifying it ; and it is further ordered thai
the said order be set aside, so far as it directs an account
of the dealings and transactions between the petitioi)er and
(a) Ulr.Eq. Rep.527.
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VOL. 11. 42
CHANCERY REPORTS. 329
respondent, relative to the limited partnership stated in the 1861.
Rolls.
said order to have been entered into between the petitioner ' , —
SIM
and respondent in the year 1859; the Court being of opi- ^^
nion that the books of account admitted in evidence by the 8i>i*
Master, as evidence of such partnership, were not properly Order.
admissible for such purpose, and that the other evidence on
the part of the petitioner does not establish such partner-
ship, having regard to the discharge, and the evidence
given' on the part of the re^>ondent ; and it is, accordingly,
ordered that the petition, so far as it relates to the said
alleged limited partnership, be dismissed with costs, to be
paid by the petitioner to the respondent, when taxed and
ascertained ; and it is further ordered that the directions in
the said order, consequential on the directing of the said
accounts, be also set aside ; and it is further ordered that
the petitioner and respondent do respectively abide their
own costs of this motion, and order thereon; and it is
further ordered that the deposit lodged, with the Registrar
be returned to the respondent
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330 CHANCERY REPORTS.
1861.
L. E. Court,
Srantretr ^i^itiiti Court.
lo the Matter of the Estate of
PETER SARSFIELD COMYN, Owner and PetUioner.
April 18.
The power This was a motion to make absolute the conditional order for the
given to the
LandedEstates apportionment of the rent reserved by the lease under which the
Court, nnder
the 72nd sec- lands for sale (with others) were held, as between landlord and
tion of 21 & 22
Vic, c. 72, is tenant. The owner's estate ,was free from incumbrances. As the
and exists ^th ^^^ ^^ ^^^ ^"^^J Stated in the judgment, it need only be
UL incumbered '^^^'^tioned that Laurence Comjn, the father of the owner, by his
b^d^^tote" ^'^ ^*^^ ^^^ ^^^^ ^®y ^ November 1815, directed that a sum
P®<»5f«°J?^ of £11,000 Government stock should be set apart, out of his per-
the landlord is ' r » r
not necessary ; sonal property, for the purpose of providing an annual sum of
but the Court r r ji r r r o
requires that £386, to be allotted for the payment of the head-rent of £380,
it should be ...
dearly shown payable out of all the lands comprised in the said lease, the
that his interest ^ , , .
is not in any extra £5 a-year to be applied m payment of any expense that
Af)T)l*PPlAn1p Ha
gree made less might attend the payment of the said rent ; and the said testator
joyable, or less ^^^^<^ ^^^^ ^ ^^^ ^ ^^^ ^^^ ^^^ inheritance of the said lands
than Wore. ^^^^^ ^ purchased, whatever part of the said sum of £11,000
K, however, miglit \^ necessary lo effect such purchase might be applied
reason to thereto for the benefit of the testator's sons John and Peter ;
OelieTe that the
petition has and the said testator gave and devised the lands of Sellemamore
not been pre-
sented for a to his second 'son John Comyn, and his heirs ; and to his son Peter,
bona fide sale.
but for the pur- and his heirs (the owner and petitioner), the lands of Spiddle,
pose of obtain- , . i» .
ing an appor- beiu^ the lands the subject of the petition in the said matter.
Court will John Comyn, having, entered into possession of the lands so de-
order a«^\Sl ^*®*^^ ^ ***™» ^^^^ ^" 1834, unmarried and intestate. On his death,
rentL^'onlv^ diflerences having arisen between the surviving members of his
^**^. *^® P^ family as to the division of his property, by a deed of compromise,
duly prose- made in the year 1839, it was agreed that the sum of £10,153.
cated. and the .^ » o
sale duly had. IGs. lid., equal to £11,000 late currency, should be transferred
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CHANCERY REPORTS.
331
to the trustees therein mentioned, upon the trusts of the will of
Laurence Comjn ; and by the said deed the said lands of Seller-
namore were conveyed to Francis Coipyn (brother of the owner),
charged with the payment of* certain annuities. The reversion
expectant on the determination of tlie said lease was vested in
Andrew Martyn.
The said Andrew Martyn filed an affidavit as cause against the
said order, in which he swore (amongst other tilings), that the lands
of Spiddle were about ten miles from the town of Galway, and
were a great additional security for the rent. That the lands of
Sellemamore, which were fifteen miles from the said town, con-
sisted principally of wild mountain land, and that both the said
lands of Spiddle and Sellemamore were in a very wild and uncul-
tivated party of tUe county. That all the lands were oocupied by
a poor tenantry in small holdings, and that, during the famine
years, a very small portion of rent was paid by the tenants of the
lands of Sellernamore. The said Francis Comyn also filed an affidavit
as cause, stating that he believed ^n apportionment would operate
against the intention expressed in the will of Laurence Comyn.
That the petition for said was not presented for the purpose of a
bona fide sale, but for the purpose of getting possession of such
portion of the funds bequeathed by the will of Laurence Comyn
as the said P. S. Comyn could establish a claim to, and thus, in
eflect, of setting aside the said will, and the said deed of compromise.
P. 8. Comyn filed an answering affidavit to that of the said Andrew
Martyn, in which he swore that, in his opinion, the said Andrew
Martyn could not be injuriously affected by the apportionment, but
that if the cause shown in the affidavit of the said Andrew Mar-
tjn were allowed, it would seriously damage the sale of the estate ;
and that Andrew Martyn was entirely unacquainted with the pro-
perty in question, having never visited it. That the rent was never
in arrear for twenty-three years ; and that there were more than
5400 acres of land in the property, which, by the last Ordnance
valuation was estimated at £750 a-year, but which actually pro-
duced £1100 per annum. That the lease was purchased in the
year 1799, for £4260, since which time property had greatly in-
1861.
L. £s CowrU
In re
COMTN's
ESTATE.
StaUmenU
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332
CHANCERY REPORTS.
1861.
X. E. Court.
Argument,
creased in value. That the present rental of the lands of Seller-
namore was about £826 per annum, and that of the lands of
Spiddle £246 per annum:
Mr. James Murphy (with him Mr. M. MarrU\ for the owner.
The 72nd section of the 21 <& 22 Fife., c 72, makes it discK-
tionarj with the Judge to apportion rent as between landlord and
tenant ; and he should do so unless he sees that some disadvantage
will accrue to the landlord. It would nullify the Act if mere oppo-
sition of the landlord were sufficient to prevent an apportionment—
[LoNOFiELD, J. No doubt, mere opposition is not sufficient]—
The Court should only see whether it is reasonable to expect that
the landlord will sustain any inconvenience: In re Hughes (a) i
Inre Halburd{b).
Mr. Flanagan^ for Androw Martyn.
Under the 37th section of the old Incumbered Estates Act (c), the
Commissioners had no jurisdiction in the case of an unincumbered
estate ; and the section in the present Act is almost literally copied
from the old Act ; it may, therefore, be doubted whether the Legis-
lature intended to extend the power to unincumbered estates. But
if it be now discretionary with the Court, it ought to exercise that
discretion with more caution than before. This is not an applica-
tion for bona fide sale. The 72nd section of the last Act is very
peculiar ; * and the words in parenthesis shows that the Court should
deal with the greatest consideration for the rights of the landlord.
In bad times, bad land suffers first.
(a) 4Ir. Jnr. 152. (6) Mac Landed Estates Prac 13a
(c) 12 &:i8 Vic., c 77, 8. 37.
* " Where it is intended to sell, under tins Act, a part onlj of anj lease in
perpetuity, or other lease, it shall be lawful for the Court, where it shall thinkfit,
and (having regard to the rights and interests of the owner of the reversion) it
shall appear to the Court just so to do, to apportion the rent reserved by soeh
lease between the hind to be sold and the remainder of the land," &c
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CHANCERY REPORTS, 333
Mr. E. Beyiagh, for F. Comyn, relied on the fact that the pro-
ceedings for sale in this case were not hanajiie^ and that the order,
if made absolute, would frustrate the intention of the will of Lau-
rence Comyn.
Mr. M. MorriSf in reply.
The owner is of course entitled to sell ; and as between himself
and his brother there can be no question, as the Court would appor-
tion between them as a matter of course. The words in parenthesis,
cited by Mr. Flanagan^ were introduced to show that the appor-
tionment was to bind the landlord as well as the co-lessees.
1861.
X. £, Court.
y , '
In re
comtn's
ESTATE.
ArgummU,
LONOFIXLD, J.
In this case the petitioner has obtained a conditional order for
an apportionment (to bii)d the landlord) of the rent payable by
him, out of the portion of a lease, of which he has obtained an
order for sale in this Court. Cause against making the order
absolute has been shown by the landlord Andrew Martyn, and
by Mr. Francis Comyn, the owner of the residue of the lease-
hold interest. The case has been very ably argued on all sides;
and I think all the facts and arguments have been fully and
clearly stated. The lands now held by the petitioner, and by the
respondent Francis Comyn, were demised in 1777) by Oliver Mar-
tyn, to a person of the name of Lynch, at a rent of £380, late
currency. Laurence Comyn, at the close of the last century, pur-
chased the tenant's interest for a sum of £4250. He bequeathed
separate portions to his sons. The petitioner is now the absolute
owner of one portion, and has obtained an order for sale ; and now
seeks for an order, under the 72nd section of the Landed Estates
Court Act, to have the rent apportioned. The head-rent is £380,
late currency ; the Ordnance valuation about £800 ; the gross
rents about £1200, and the value of the petitioner's interest is
£246 a-year.
The proceeding is not one of very frequent occurrence. By the
72nd section of the Act by which this Court is founded, which is
in its terms precisely the same as the 37th section of the Act
JudgmmU,
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334
CHANCERY REPORTS.
1861.
i. E. Court.
In re
comtn's
ESTATE.
Judgment,
which created the Incumbered Estates Court, a power is given to
the Court to alter the contract between landlord and tenant. The
power to alter a fair contract had never previously been given to
any Court ; but now, by the section of the Act which I am called
upon^ to administer, the Court has the power of making an alter-
ation in the position of the parties, which will diminish tho security
which, under the original contract, the landlord possessed for the
recovery of his rent. The difference proposed to be made is this : —
at present the estates of the two brothers are jointly liable for the
entire of the rent : the effect of the order sought for by the peti-
tioner would be to make the estate of each brother separately
liable for his own proportion only. The landlord, and the owner of
the other moiety of the leasehold interest, both appear to oppose
this change. I shall consider their arguments separately. One
argument, indeed, which would have been invincible under the
ancient law, is deprived of all its force by the Act of Parliament..
The landlord can no longer assert that it is more m accordance
with his wishes to receive the rent in one sum from one man;
and, therefore, the lease must not be thus divided. No arguments
can prevail which will apply with equal force to every case, and
which are therefore rather against the policy of the, Act than
against any particular mode of administering it. The consent of •
the landlord is not necessary ; but the Court requires that it
shall be clearly shown that his interest is not in any appreciable
degree made less secure, or less enjoyable, or less marketable,
than before. On the point of security, it is urged, on the part of the
landlord, that the head-rent is £351 ; the Ordnance valuation is about
£800; the rent payable by the undertenants, who are poor and
numerous, is less than £1200 a-year; and that some of the land
is ten, and some of it thirteen, miles from the town of Galway.
I think that the security is ample, and that there is no reasonable
ground for apprehending that either portion of the land will ever
prove an insufficient security for the rent to which the landlord
is entitled. As to the condition of the tenantry, and the sub-
division of the land, there is not much difference between the
two portions into which the estate is divided. I should not be
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CHANCERY REPORTS.
335
disposed to grant an apportionment, if one portion of the land 1861.
was so circumstanced that the landlord would naturally be dis-
poj^ed to resort to it alone for payment of the entire head-rent.
Next, with respect to the enjoyment of the reversioner's interest,
it is undoubtedly true that one large rent is a more desirable Judgmant.
property than several small rents equally well secured, and of the
same aggregate amount. Still the Act does contemplate the divi-
sion by the Court of one rent into two smaller rents; and it is
for the Court to consider whether the splitting of the entire rent
into smaller parts is any substantial inconvenience to the landlord
in this particular case. On this point I am referred to tlalhurdPt
case (a); and, on reading the order, I perceive that in that case
I divided a rent of £120 a-year into two equal rents of £60 each,
the security being about the same a» in the present case ; and in
the present case the smaller of the two portions into which tiie
rent will be divided will probably exceed £70.
With respect to the marketable value, it is urged that the divi-
ded rents would not fetch so high a sum as the single large rent.
On this point I can say that, after eleven years' experience, and
selling many milliops' worth of property, I believe that, if the
landlord were bringing his estate into this Court for sale, one of
his first steps would probably be to apply for an order to appor-
tion the rent among the tenants, for the purpose of selling it in
smaller lots; and the motion would, no doubt, be supported by
aCrong affidavits to show that such an apportionment would con-
siderably enhance the value of the estate.
It is next urged that this is an incumbered estate, and that this,
power, which was first given to the Court for the Sale of Incumbered
Estates, was, by copying the section of the old Act, given inadvert-
ently^ even where the estate was not incumbered. I cannot accept
this doctrine. I must rather judge of the intentions of the Legisla-
ture from the language of the Act, and suppose that, having found
great benefit given to the country by the free transfer of land under
the Incumbered Estates Court, the Legislature supposed that still
greater benefits would be derived, if all the same powers were
(a; M'Nev. Prac. 138.
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336 CHANCERY REPORTS.
1 86 1 . extended to the sales of uoincumbered estate?. It can make no differ-
X. E, Court.
^-"-^^ ence to the landlord that the tenant does not mortgage his estate to
comyn's ^^^ third party before he makes this application. If his interests
ESTATE, jip^ uQ^ injuriously affected, he has no reasonable ground of com-
Jmdgment, plaint. If the order could inflict any injury, it ought not to
be made, whether the land be incumbered or not. It is next urged,
by both the respondents, that the. power of apportionment was
given to the Court only for the purpose of a sale, and that no sale
is seriously intended in this case. There certainly are some sus-
picious circumstances in the transaction, but I shall meet this
objection by the form of my order.
The objection of the second respondent Francis Comyn is
• founded upon the will of Laurence Comyn, under which the peti-
tioner Peter Comyn, and the respondent Francis Comyn, derive
their respective titles. By this will, Laurence Comyn, afler giving
separate portions of this leasehold interest to his two sons, be-
queathed a sum of £11,000, late currency, in the £3^ per cent
«tock, for the purpose of paying the head-rent, or, if practicable,
of buying the lessor's interest; the residue, if any, to be divided
equally between his two sons. A change, not contemplated by the
testator, has occurred. The head-rent was £380, late currency. The
dividend on £11,000, of £3^ per cent, stock, was £385, leaving a
surplus of £5. But the £3^ per cent, stock has been converted
into a £3 per cent, stock, and there is now a deficiency instead of a
surplus, unless there should be a poor-rate of more than 5s. 3d.
in the £1. Mr. Francis Comyn asserts that the real object of the
petitioner is to separate hi» interest in the land, and in the money^
from that of his brother, in order that he might apply to the Court
of Chancery to receive that portion of the money which is now
impounded to pay his proportion of the rent, and this would injure
him, as one of the trusts of the money is to buy the landlord*s in-
terest, and that it is possible that Mr. Martyn might be willing to
sell the entire rent, and yet be unwilling to sell Mr. Francis
Comyn's proportion of it only. I cannot yield to an argument
founded on such uncertain speculation. It is certainly possible that
the landlord might be willing to sell the whole, and yet unwilling
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CHANCERY REPORTS.
337
1861.
L, E. Court,
to sell a part of bis estate. On the other hand, it is eqaally possible
that he might be willing to sell a part, and yet unwilling to sell the
whole ; and there is a third eontingencj, which appears to be the
case at present, viz., that the landlord has no intention to sell either
the whole or any part of his estate^ But I have nothing to do with Judgment
the disposal of the money. If the petitioner wants to get any part
of it he must apply to the Court of Chancery. If the application
fails, then the argument of the respondent also fails, since the result
which he dreads does not take place. On the other hand, if the
petitioner succeeds in getting the money from Chancery, that is a
proof that it is just and reasonable that he should do so, and, there-
fore, that the respondent has no ground of complaint. I feel, there-
fore, constrained to make the conditional or^er for apportionment
absolute. No costs as between the tenants, as the apportionment
is for their mutual benefit. The landlord is entitled to his casts, as
his legal rights are interfered with for the petitioner's benefit, and
to a duplicate of the final order for apportionment under the seal of
the Court. Let the final order for apportionment not be sealed until
the conveyance to the purchaser is ready for execution. If the
petitioner applies for liberty to bid, or if the petition is dismissed
for want of prosecution, let the order for apportionment be dis-
charged, with costs, to be paid by the petitioner to both the
respondents* If the two tenants do not agree upon a valuator, let
them bring the names of their valuators before me, and I shall
appoint one or two. The valuation must be made according to the
value at the present time ; but if any change in the relative values
of the estates of the two brothers has taken place since the decease
of Laurence Comyn, let the circumstance be specially reported.
VOL. 11.
43
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338 CHANCERY llEPORTS.
1861.
Chancery,
M'TEAR V. M'DOWELL.
(In Chancery),
Feb. 19. 20.
A testator This case came before the Court upon a special case, stating that
ffftyo aH his
property, real Alexander M'Laine, bj his will, dated the 17th of August 1849»
to tros^^ ' bequeathed to the petitioner and to Nicholas Fitzsimons and Richard
that t^ey Langtry all his property, real and personal, upon the trusts and for
freehold estat^ ^^® purposes thereinafter mentioned ; and, after bequeathing^ to his
and make up ^|fg ^^ annuity of £150 a-year,^ and making certain provisions for
his estate, so i\^^ management of his property, he directed that his trustees should
might be able sell his freehold estate, and make up an account of his estate, so that
to make a diyi«
sion amone th0y might be able to make a division or allocation thereof amongst
his nine child-
ren, to whom his nine children, viz., Jane, John, Alexander, Martha, Susanna,
he left the _ , ^ -r i •.. , , , », , • •■
same in equal Robert, George Langley, Lachlan and Helen, to, between and
other direc- amongst whom he left and bequeathed the same, in equal shares ;
dared tluit he *"^ ^^^^ certain other directions the testator proceeded as follows : —
of^his Vau^ " ^^^ ** ^ *^® ^^^'^ ^^ "^y ^**^ hereby bequeathed to my dapgh-
T^ ^ • *^^"' ^^^ ^ hereby leave the same to them respectively, for their respee-
spective lives, tive natural lives, free from the control, debts or en^affements of
free from the ' j o 6
control of their any husbands they may respectively marry, and with power to them
bosbands, with
power to ap- to bequeath or appoint the same, by deed or will, among their
point the same .„^ . /> . , « . , ,.
among their Children, in case of marriage, as they may see fit, notwithstanding
children, not- « r«i 4. . . . - , . .
withstanding coverture/ Then, after certain provisions for the maintenance of
a subsequent ^"® children during their minority,, the testator proceeded : — " And
rected that the ^ f^^'^^^^r ord©"* *nd direct, that the shares of such of my children, of
sons^w^o^** my said estates and effects, as being sons, shall have attained the
should have
attained twenty-one, at the time of his death, should forthwith vest in them ;
and that the shares of the other sons should vest as they should afterwards re-
spectively attain the age of twenty-one years ; and the shares of daughters, on
marriage ; and that the shares of sons who should die under twenty*one, and of
daughters who should die unmarried, should go amongst the survivors as therein
mentioned. J., one of the testator's daughters, married, and died without having
exercised her power of appoint noent, leaving one child. — Held, that J. took an
absolute interest in her share of the fund.
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CHANCERY REPORTS.
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1861.
Chemeery^
age of twenty-one years, at the time of my decease, shall forthwith
▼est in them ; and that the shares of the others of them, being also
sons, shall also vest, as they shall afterwards respectively attain
said age ; or, in case of daughters, on day of marriage, but not m^owell.
sooner or otherwise ; and that, in the meantime, the share or shares, Statement
as well original as accruing, of such of the said children as being
sons shall die under the age of twenty-one years, or, as being
daughters, shall die unmarried, shall go to, between and amongst
the surrivor or survivors of them, in equal shared and proportions,
as tenants in common." The testator named the trustees his exe*
cutors, and died in 1856. Probate was granted to the trustees.
Susanna M'Laine died under age and unmarried. Jane M^Laine,
in 1858, married Edward McDowell, and by her settlement pro-,
fessed to assign to trustees her accruing share of Susanna's one-
ninth. Jane M'Laine died in 1859, leaving her husband, the said
Edward M*Dowel1, and one child, a daughter, the respondent Jane
McDowell, surviving, but having bequeathed to her husband all
property which she had power to bequeath or devise. This will was
duly proved by Edward McDowell.
Mrs. McDowell's share having been claimed by her husband, by
her daughter, and by the next-of-kin of the testator, the petition in
this case was presented, to ascertain the person entitled.
Mr. Arthur Sharman Crawford^ for Uie petitioner, submitted to ^^
act as the Court should direct.
Mr. David Pigot, for Mr. M*Dowell.
Mrs. M'Dowell was absolutely entitled, in default of appoint-
ment to the children, and her husband is, there^Dre, entitled: Re
(yReilly (a) ; Lassence v. T%emey (*) ; Findon v. Findon (c) ;
Blackmore v. Ince (d) ; Magee v. Townsend (e) ; Hulme v.
Hulme (f) ; Campbell v. Brovmrigg (g). There is nothing to give
(a) I It. Chan. Rep. 497.
(5) I M*N. & G. 551 ; S. C, 2 H. A T. 115.
(c) 1 De G. & J, 380. {d) lI>tQ.& J, 458.
(«) 3 Beav. 443. (f) 9 Sim. 644.
{g) 1 PhU. 301.
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340 CHANCERY REPORTS.
1861. the children an implied estate in default of appointment. Harding
y -, ^^ y. Olynn (a), Brown v. Higgs {h\ Kennedy y. Kingston (c),
Witts y. Boddington (J), are all distinguishable from this case.
MCDOWELL. Where there is a prior power to appoint the estate, without anj
Armment, expression of wish or desire by the testator, there can be no estate
implied from the existence of the power, and the Court cannot
interfere.
Mr. Arthur Jaekson^ for Jane McDowell, daughter of Mrs.
McDowell : Broum y. Higge (e) ; Surrough y. Phileox (f) ; Jarman
on Wills^ pr46l ; Mcuon y. Lymberry{g)\ Witts y. Boddington;
Kennedy y. Kingston (h) ; Birch y. Wade{i); Forbes v. BaU{h).
Mr. Andrews^ for the next-of-kin : Oompertz y. Gowpertz (/);
Crossling y. Crossling (m) ; Marlborough y. Godolphin (it); Jackson
Y. Forbes (o)i Eyre y. Marsden(p)) Leeming y. Sherratt (g).
The LoBD Cbancellob.
Judgment, I am yery clearly of opinion that this fund does not go to the
next-of-kin of the testator. The bequest appears to me to come
within the principle otLassence y. Tiemey (r), and other analc^us
cases mentioned in the argument; there being eyidence, on the'
whole language and construction of the will, of the testator's inten-
tion to giye the legacy absolutely as between his estate and the
legatee. In the first instance the property was giyen amongst all
the sons and daughters, in equal shares and proportions, in terms
(a) Atk. 469.
(6) 4 Yes. 706 ; S. C, on i^peal, 5 Yes. 495.
(c)'2J. &W.431.
((/) 3 Bro. p. C. 95; S. C.» 6 Yes. 50S, from Reg. Lib.
(e) 4 Yes. 708. (f) 5 M. & C. 72.
(g) 2 Bug. Pow. 165. (A) 2 J. & W. 48t.
(0 3 Yes. ^ B. 196. (A) 3 Mer. 434.
(0 2 Phil. 107. (m) 2 Cox, 396.
(h) 2 Yes. 61. (o) Tamlyn, 88.
(p) 2 Kee. 573. (9) 2 Har. 14.
(r) I Mac. & G. 551.
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CHANCERY REPORTS. 341
which would confer upon them the absolute interest; so that if it 1861.
Chancery.
rested there they would, of course, have taken their respective Shares ^^ — v '
M*TEAB
out and out ; but the will then proceeds to declare, that the shares ^^
given to the daughters were left for their respective natural lives ; m'dowell.
and if the will stopped there, some difficulty might be created ; but Judgment.
the whole will must be taken together : and when we go further, it
would appear that the testator's real meaning was not to cut
down the absolute interest to an estate for life, but to prescribe the
mode of enjoyment in the event of the daughter murrying; for
he goes on, "free from the debts, control or engagements of any
husbands they may respectively marry^ and with power to them to
bequeath or appoint the same, by deed or will, among aheir children,
in case of marriage, as they may see fit, notwithstanding coverture."
There is no general intention manifested there of cutting down the
interest to an estate for life ; there is no general power given ; what
IB conferred on ihem is a limited power of a very curious kind, which
seems intended to be exercised, not during their entire lives, but
only during coverture. That seems to be the true construction,
from what went before it ; he provides merely for what might occur
during coverture, and means to give the daughters power, in case of
their death while married, to divide their respective shares among
their children : so that it would appear that his intention was merely
that they should be free to exercise their power of disposition
amongst their children, free from marital control, and that for this
reason the power is confined as I have stated.
Thb construction is supported by the next clause, in Which he
directs that the shares of " such of my children of my said estate
and effects as, being sons, shall have attained the age of twenty-one
years, at the time of my decease, shall forthwith vest in them."
What is the meaning of that ? It means that they shall become
absolutely entitled ; for there is not any other meaning which could
there be attributed to the word '' vest." Then he goes on, ^' and that
the shares of the others of them, being also sons, shall also vest as
they shall afterwards respectively attain said age, or, in case of
daughters, on day of marriage, but not sooner or otherwise." Now
what is to vest in the daughters ? The share of the property which
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342 CHANCERY REPORTS.
1861. he had given to them, in the mode to which I before adverted, free
^^ y ■ ^ from the control of their husbands, and in their power to dispose of
m'tear
for the benefit of theif children. Then he goes on to saj, ** That,
K^owELL. in ^e meantime, the share or shares, as well origiQal as aoeraing,
Judgment, ^^ ^^^^ ^^ ^^® children as, being sons, shall die under the age of
twenty-one years, or, as being daughters, shall die unmarried, shall
go to, between and amongst the survivor or survivors of them, in
equal shares and proportions, as tenants in common." Thus the
testator shows that he well knew how to frame a limitation over ;
and he has done so, but only in one event, and he has declared that
if that do not happen the shares are to vest, or, as his prior use of
that word shows his meaning to be, to become the absolute property
of the legatees.
It never could have been the meaning or intention of the testator
that, if his daughters were to die without having made an appoint-
raent in favour of their children, their shares were to go over ; and
no Court would give such a construction to a will, if not absolutely
coerced by very strong words. ^ Lassence v. Tiemey (a) is a very
strong case. The words there are much stronger than they are
here. The testator there, af^er several legacies, proceeded:—***!
give and bequeath to my only daughter, Catherine Reade, the
residue of my property, wheresoever and whatsoever, to receive
the interest thereof during her lifetime without being
subject to any control or restraint from her present or any future
husband." He then went on to direct that she should not have
power to dispose of any part of the property during her life,
and that, af^r her decease, it should be divided between her
children, in the way therein mentioned. In that case, it is true
that the decision was that Catherine Reade did not take the abso-
lute estate in the property; but the Lord Chancellor says, **If
a testator leave a legacy absolutely as regards his estate, bat
restricts the mode of the legatee's enjoyment of it, to secure certain
objects for the benefit of the legatee, upon failure of such objects
the absolute gift prevails." Now applying that rule here, it is
manifest that the restrictions imposed are merely for the benefit
(a) 1 M. &. Q. 551.
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CHANCERY REPORTS. 343
of tUe legatee and of her children, if any. The Lord Chancellor 1861.
then went on: — "But, if there be no absolute gift, as between ^- y -^
the legatee and the estate, but particular modes of enjoyment ^
are prescribed, and those nkodes of enjoyment fail, .the legacy m'dowblu
forms part of the testator's estate, as not having, in such event, Judgment.
been given away from it. In the latter case, the gift is only for
a particular purpose ; in the former, the purpose is the benefit of
the legatee, as to the whole amount of the legacy." Can we say
here that the gift was only for a particular purpose, when there
was, first, a bequest of the shares, in terms sufficient to give an
absolute interest, then a direction as to the mode of enjoyment
during their lives, with a power afterwards, and, finally, an express
direction that the share should vest in an event which has hap-
pened? Lord Cottenham proceeded: — "In every case, therefore,
the question must be one of construction ; and, except for the
purposes of such construction, ybtj little assistance can be derived
from former decisions. It is, however, obvious that the intention
that the gift should be absolute as between the legatee and the
estate is, as in all cases of construction, to be collected firom the
whole of the will, and not from there being words which, standing
alone, would constitute an absolute gift." A similar doctrine is laid
down in Gompertz v. Gompertz (a) ; thovgh in that case the Court
decided that the next-of-kin were entitled; but Lord Cottenham
gays : — '^ If he had afterwards done no more than direct how the
shares so given were to be laid out and enjoyed, the case would
have fallen within the principle of those cited ; but the subsequent
directions relate not to that, but to the nature and substance of the
gift itself; for whenever, in the course of these directions, the testa-
tor refers to the shares of his daughters, it is always accompanied
with an explanation of the sense in which he means to use the
word ; that is a life interest only, with remainder to their children."
That cannot be predicated of the shares here ; in no part of this will
are the shares spoken of in this limited way.
There is another very late case. Be CorbeWs Trusts (i), which is
perhaps nearer the present, in its terma, than any other which can
(a) 2 Pha. 107. (6) 1 Johns. 591.
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344 CHANCERY REPORTS.
1861. be found. In it " The testator bequeathed £3000 to trustees ; as to
Chmcery. £iqqq^ Qpo^ trusts in favour of his daughter Elizabeth, identical
m'teab ^j^ ^^^ ^jj^^ hereinafter stated as to Sarah DoUett; as to £1000,
M^owELX. on similar trusts for his daughter Mary ; '* and then proceeded as fol-
Judament ^^^^' — "And as to £1000 principal, remainder of the said £3000,
and the interest and dividends arising from the said £1000, in trust
for mj niece Sarah Dollett, and to pay and apply the interest and
dividends thereof, from time to time, to and for her benefit, until she
shall attain her age of twenty-one years or marriage, which shall
first happen ; and, upon her attaining that age or marriage, I direct
one moiety of the said principal sum of £1000, or the funds and
securities whereon the same shall be then invested, to be paid or
assigned to my said niece, absolutely ; ** and, as to the other moiety,
in trust to pay the interest to the representatives of the niece for
life; and, from and after her decease, he directed the trudtees to
stand possessed of this moiety, in trust for all and every the child
and children of Sarah Dollett^ with various provisions and limita-
tions over, as to the children. There, there was, in the beginning, the
declaration of trust for the niece, followed by far more express and
precise limitations than any here contained; and Vice-chancellor
Sir Page Wood decided that the will, so far as it went in r^ard
to the children, if it had stopped there, would have conferred an
absolute interest on the heir, in default of children, saying :-^'< It
seems to me that, if the will stopped there, the trust for Sarah
Dollett would be sufficient to bring the case within that class of
authorities where gifts of this kind, modified by subsequent limita-
tions, have been treated as absolute gifts, subject only to suclk
modifications ; so that, on those subsequent limitations failing, the
original gift remains in force. I think that would be so on the
terms of the gift itself.** There was, however, a subsequent limita-
tion, which he held to be effectual in the event which bad occurred ;
but, if the will had stopped with the limitation to the children, it
would, in his judgment, have conferred an absolute estate in Sarah ,
Dollett.
There is another case which, perhaps, is still stronger — Sell ir.
Jackson (a), where the testator made the following bequest :---.** I
(a) 1 Sim., N. S., 547.
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CHANCERY REPORTS. 345
give to my grand-daughter, Elizabeth Biddies Noon, the sum of 1861.
Chancery.
£4000, to be paid on her attaining the age of twenty-one years ;
and I direct my executors to place the same out at interest, and
apply a competent part of such interest for her maintenance, educa- m*dowell.
tion and advancement, until she shall attain that age." The testator Judgment,
afterwards made a codicil, by which he directed that Elizabeth
Biddies Noon should have only the interest of £2000 until she
attained twenty-three, and proceeded, " The interest of the other
£2000 I direct my executors to put out to interest, so that it may
become principal ; and, at the time of the said Elizabeth Biddies
Noon arriving at the age of twenty-three years, I hereby direct my
executors to have the whole settled upon her for her life, and, afler
death, to her child or children, in equal proportions, so that no '
husband of hers may spend it.'* In that case. Vice- Chancellor Lord
Cranworth held that the limitation to the children was merely
carved out of the absolute interest previously conferred on Elizabeth
Biddies Noon ; so that, if she never had children, her interest was
not affected. liooking at the principle of the decisions to which I
have referred, and also looking to the very strong lang-uage of this
will, I think that the next-of-kin of the testator have failed to
establish any right to this fund as undisposed of by his will.
The question then arises, whether there is any trust for the
children of this lady, or any implied limitation to them in default
of appointment ? I do not think that any such trust or limitation
can be discovered in the will. There is a mere naked power of
appointment given to the daughter ; but no limitation over in
default of appointment — nothing to show any intention to give the
property to the children; and, therefore, however I may guess that
it was the intention of the testator that the children should take, I
am bound to hold that he has failed to exjMress any such intention ;
that he has only conferred upon his daughter a power which she was
at liberty to exercise, or to abstain from exercising, and that Mr.
McDowell is entitled to this fund. There is no question raised
respecting the right to the accnied fund.
f
Chancer^/ Hearing Booky 27,/. 34.
VOL. 11. 44
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346 CHANCERY REPORTS.
1861.
Ch. Appeal.
Court o( Hfftnl in Citinttxp.
In re the Estate of LAWDER, Assignee of Irwin, Owner;
HILL and DOWUNG, Petitioners. *
Feb. 4, 5.
A testator, by Bt deed of settlement, executed on the marriage of John Richard '
his will, made
in 1836. exe- Irwin, in 1826,. his father conveyed the lands of Harristown to trus-
cated a power
of appointing tees, to the use of himself for life, Mrith remainder to John Richard
yo^^r sons Ii'win for life, with remainder to John Richard Irwin's first and
£2(^ charg- Other sons, as tenants in tail ; and, by the same deed, the lands
marr^**TOt- ^®^® charged with a sum of £2000, as a provision for the younger
Sf^'^ds^'* f ^^^'®^ ^^ ^^® marriage, as John Richard Irwin should appoint.
H., of which John Richard Irwin, by his will, dated the 26th of July 1836,
he was tenant » ^ j ^ t
for life. After appointed the £2000 among his three younger sons thus; £600
his death, his
eldestson,who to Richard, £1000 to John, and £500 to Lewis. In August 1886,
took the lands
ofH. as tenant John Richard Irwin died, and his eldest son, Thomas Rodney
yeyedthem,in Irwin, entered into possession of the lands. In 1887, Thomas
tees, 'to secure ^o^^J Irwin, for the purpose {among others) of paying off the
by""iwiy of ^^^ ^^ £1000, SO appointed to John Irwin, borrowed a sum of
mortgage; the £iqqq from William Woodroffe ; and by deed of mortgage, dated
Toonger sons *' o o »
behjg parties ^he 7th of February 1837, he conveyed the lands of Harristown
gage, and con- to trustees, to secure payment of the same; and at the same
senting there-
by to postpone time he gave them, as collateral security, his bond and warrant
their claims to ^ , . , . , , „ , , • ,
it; and, at the for the same amount. Upon which they accordingly entered judg-
same time, the
elder son exe-
cuted his bond collateral, for securing the same som, and warrant, npon which judj^r
ment was entered. In 1841, the eldest son purchased the lands of F. ; and, m
1845, a judgment was obtained against him by 8* The lands of H. and F. were
subsequently sold in the Landed Estates Court ; and the proceeds of H. haying
proyed insufficient to pay the amount due on foot of the mortgage, it was ordered,
by a Judge of that Court, that the mortgage debt should be paid rateably out of the
proceeds of H. and F., and the surplus of &. applied in discham of the appointees'
claims, and the surplus of F. in discharge of the judgment of 1845.
This Court, upon appeal, reversed that decision, being of opinion that no equity
had arisen upon the purdiase of F., in favour of the appointees under the will, so as
to entitle them to insist upon the mortgagee's daim being paid rateably out of the pro-
ceeds of H« and F. ; and tnat, consequently, the doctrine of marshalling did not apply.
Bamee r. Raater (I Y. & CoL, Ch. Cas., 401) commented on.
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CHANCERY BEPORTS.
347
ment. Richard and Lewis Irwin were parties to the mortgage
deed, and thereby agreed that the sum of £1600 thereby secured
should be an incumbrance upon the lands, prior to their respective
shares of the charge of £2000.
In 1841, Thomas Rodney Irwin purchased the lands of Flower
Hill; and, in 1845, Richard Irwin obtained a judgment against
him, in the penal sum of £700, which judgment now vested in
Arthur Stanley, the appellant
In 1853, Hill and Dowling, the trustees of the mortgage of 1837,
filed a petition in the Incumbered Estates Court for a sale of all
the lands. Th^ lands were subsequently sold in the Landed Estates
Court ; and the proceeds of the sale of Harristown proving insuf-
ficient to discharge the mortgage debt, Richard Irwin and the
representatives of Lewis Irwin (appointees under the will of John
Richard Irwin) claimed to have the securities marshalled. Judge
Dobbs, on the 17th of August 1860, ordered that the amount due
on foot of the mortgage of 1887 should be paid rateably out of the
proceeds of the sales of Harristown and Flower Hill, and that the
residue of the proceeds of Flower Hill should be applied in payment
of Stanley's judgment debt ; and the residue of the proceeds of
Harristown in payment of the claim of Richard Irwin and the
representatives of Lewis Irwin.
Against that order the present appeal was brought by Arthur
Stanley, upon the following grounds: — First; that the claimants
were, by the contract made by them upon the execution of the
mortgage of 1837, disentitled from having the lands of Harristown
exonerated from the payment of any portion of the mortgage debt.
Secondly; that the claimants, not being creditors of Thomas
Rodney Irwin, the owner of Flower Hill, were not entitled to have
the proceeds of the sale marshalled in their favour.
Thirdly; that the appellant, having a statutable charge upon
the lands of Flower Hill, by virtue of the judgment of 1845, was
entitled to be paid the same in due priority to all claims, except
that for the balance due on foot of the judgment collateral with
the mortgage of 1837.
Statement,
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348
CHANCERY REPORTS.
1861.
Ch. Appeal.
In re
lawder's
ESTATE.
Argument.
The Solicitor-General^ Mr, Brewster and Mr. Harkan, for
Arthur Stanley, the appellant
This case must be decided upon the construction of this contract
The doctrine of marshalling does not apply. The cases are col-
lected in Aldrieh y. Cooper (a). In Ex parte KendaU (6), Lord
Eldon said (p. 520) : — ** We have gone . this length ; if A has a
right to go upon two funds, and B upon one, having both the '
same debtor, A shall take payment from that fund to which he
can resort exclusively } that, by those means of distribuUon, both
shall be paid. That course takes place where both are creditors
of the same person, and have delnands against funds the property
of the same person. Here, it is true, there may l^ creditors
' who have demands against the four, and others who have demands
against the one ; but it was never said that, if I have a demand
against A and B, a creditor of B shall compel me to go against A,
witliout more ; as, if B himself could insist that A ought to pay in
the first instance, as in the ordinary case of drawer and acceptor^
or principal and surety ; to the intent that all the objections
arising out of these complicated relations may be satisfied: but *
if I have a demand against both, the creditors of B have no
right to compel me to seek payment from A, if not founded on
some equity giving B the right, for hia own sake, to compel me to
such payment from A." — [The Lobd Justice op Appeal. That
is the principle upon which we acted in ReKeily(c)*'] — In this
case, no equity ever arose in favour of the appointees under the
Will, giving them a right to compel the mortgagees to seek payment
of their debt, or a rateable portion of it, from the Fbwer Hill estate.
Judge Dobbs appears t6 have acted upon the authority of Barnes
V. Racster (<f). But that case was different ; for there, there was
a common debtor. In Gibson v. Seagrim{e)y the Master of the
Rolls, in his judgment, gives (p. 619) a good rendering oi Barnes
v. Racster ; " I agree with what was decided by the; Vice-chancellor
Knight Bruce, in Barnes v. Racster^ that if tWo estates are mort-
gaged to A, and one is afterwards mortgaged to B, and the
(a) 2 W. & T., L. C, 56.
(c) 6 Ir. Chan. Rep. 394.
(6) 17 Ves. 514.
{d) I Y. &CoL, C.C.,401.
(e) 20 Beav. 614.
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CHANCERY REPORTS.
349
remaiolDg estate is afler wards mortgaged to C, B has no equity 1861.
to throw the whole of A's mortgage on C's estate^ and so destroy 9^' ^pp^l;
C's security. As between B and C, A is bound to satisfy himself , .£!J!!„»„
■^ IjAWDEK s
the principal, interest and costa due to him out of the two estates estate.
rateably, according to the respective values of such two estates ; AZZimi.
and thus to leave the surplus proceeds of each estate to be applied
in payment of the respective incumbrances thereon."
Mr. Serjeant Sullivan and Mr. P, J. Blake, for Richard Irwin,
and the representatives of Lewis Irwin.
Barnes v. Racster is a precise authority in support of the decision
in the Landed Estates Court. Thomas Rodney Irwin covenanted
in the mortgage deed to pay the charges, thereby becoming a direct
creditor to Richard and Lewis. The effect, therefore, of that deed
was to charge the two sums of £600 each upon the lands, subject
to the mortgage. — [The Lord Chancellor. They were always
charged upon the lands.] — But he directly covenants with these
parties to pay them their portions, and the interest on them,
thereby making himself directly their debtor. The effect of the
mortgage deed was, even if the £2000 charge had never existed,
that Thomas Rodney Irwin had, for value received, charged the
lands with those two sums, and covenanted to pay them, as if
he had in fact given a mortgage for those two charges. The
mortgagee had also a collateral judgment ; and the moment Thomas
Rodney Irwin acquired Flower Hill, Richard and Lewis had a right,
as between them and Thomas Rodney Irwin (not, perhaps, against
a purchaser for value, but certainly as against the judgment
creditors of Thomas Rodney Irwin), to have the mortgage and
judgment paid rateably out of Harristown and Flower Hill, on
the principle established by Barnes v. Racster- In that case,
Racster had, in 1792, mortgaged Foxhall to Barnes. In 1792,
he mortgaged the same estate to Hartwright; and, in 1800, he
mortgaged both Foxhall and No. 32 to Barnes; and it was held
that the actual circumstance of the first mortgagee having acquired
a new mortgage over both estates gave Hartwright a right to throw
the first mortgage rateably on both estates; and were it not that
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350
CHANCERY REPORTS.
ArgwnaU,
there was a fourth subsequent mortgage, he would have had a right
to have the entire of the first mortgage thrown on No. 82. — [The
Lord Justice of Appeal. That was the case of the same debtor,
and different estates mortgaged for the same debt] — The rule would
be this, that, where a person mortgages an estate first to one party,
and then to another, subject to the first mortgage, and subsequently
makes another estate subject to the first mortgage, then the seoond
mortgagee has a right to have the first mortgage paid pari passu
out of both estates : In re Cornwall (a). In the present case, the
mortgagee could have proceeded on his collateral Judgment^ in the
first instance, if be pleased, and have had Flower Hill sold first — [The
LoBD Chancellor. The acquisition of Flower Hill was no part
of the contract ; but, in Barnes v. Racster^ the mortgagor in effect
contracted with the second mortgagee to give him a security and
that he would pay him out of it if he could ; and his giving a new
mortgage to the first mortgagee gave him the means of paying the
second mortgage out of the first estate.]
They also cited Bugden v. Bignold(b); Tidd ▼. Lister {e)\
Heveningham ▼• Heveningham (d) ; Hyde ▼• Atkinson («)•
Mr. Brewster^ in reply.
The respondents here agreed that they would not look to Harris*
town for payment of their claims, until the mortgage }iad been paid
out of it. The liability of suretyship is a cotiimon liability to a
common demand : In re Keify (f). Although the mortgagee might
have availed himself of any of his sequrities^ that fact does not alter
his primary fund ; and, he having been paid off out of that, there is
an end of both mortgage and collateral judgment. Richard Lewis
Lrwin could not, at any time, have said to the mortgagee, ^*Mr.
Irwin has now another estate. Flower Hill; proceed against it, and^
you will be paid your demand." In Bames.y. Raesterj when Rac-
ster, having mortgaged to Barnes, then mortgaged to Hartwright,
and then gave Barnes a mortgage over a separate estate, for the
(a) 6 Lr. Bq. Rep. 63. (6) 2 Y. & CoL, C. C, 877.
(c) 10 Hare, 14a (d) 2 Vem. 265.
(e) 2 Ir. Chan. Bep. 246. 09 6 Ir. Chan. Bep. 394.
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CHANCERY REPORTS.
351
same debt, that was in effect a payment pro tanto of the original
debt; but where, instead of the party giving a mortgage on a second
estate, the law attached the original debt to that second estate, that
ia no stipulation on die part of the owner that any of the debts shall
be satisfied out of the second estate.
Argument.
The Lord Charcellob*
It la an old and well established doctrine, that, if the owner of JudgtMnt.
two estates mortgages them both to one person, and sabeeqnentlj
mortgages one of the same estates to another person, an equity
arises, on the part of the person who has a mortgage on one estate ,
only, to throw the demand of the first mortgagee upon the estate
of the two, upon which the second mortgagee has not a mortgage.
That is the principle recognised in all the cases which have been
cited, and particularly in Gibson ▼. Se{tgrim(a). In that case.
Sir Samuel Romilly entered fully into the subject, adopting the
principle of Aldrich T* Cooper {h\ while, at the same time, he
expressed his concurrence in the subsequent decision in Bamei y.
Raester (c)« The facts of Oibson y. Seagrim were shortly these : —
In 1851, Seagrim mortgaged certain real estates to Johnson. In
1852, he mortgaged the same estate to Godwin, transferring to
him, at the same time, the shares in the Winchester Gas. Company,
by way of additional security. In 1 853, he mortgaged all the lands,
including those in the former mortgage, to Gibson ; but the gas
shares were not comprised in this security. The first mortgagee
subsequently sold the real estate included in his mortgage, and,
after paying himself, handed oyer the surplus to the second mort-
gagee, Gk)dwin, who applied it in payment of his UKMrtgage debt ;
and then, having sold the gas shares, paid himself in full, and
handed ovet the balance to the assignees of Seagrim, who had
become a bankrupt. Gibson applied to have this balance applied
in satisfaction of his debt, in lieu of the surplus of the proceeds
of the real estate intercepted by Godwin. Thus, at the time when
Johnson's mortgage was paid off, the parties stood thus; Godwin
(a) 20 Beav. 614. (6) 3 Ves. 881.
(c) 1 Y. & Col, C. C, 401.
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352
CHANCERY REPORTS.
Judgment.
had a mortgage on two estates, namely, the real estate (ind the
gas shares; and Gibson had a mortgage on the real estate only.
The Master of the Rolls, in his judgment, having expressed an
opinion that the^ two estates ought to be marshalled, in accordance
with the principle laid down in Aldrich v. Cooper, and that class
of cases, said, ^* But I agree with what was decided by the Vice-
Chancellor Knight Bruce, in Barnes y. Raoeier, that, if two estates
are mortgaged to A, and one is afterwards mortgaged to B, and the
remaining estate is afterwards iportgaged to C, B has no equity to
throw the whole of A's mortgage on C's estate, and so destroy C's
security. As between B and C, A is bound to satisfy himself the
principal, interest and costs due to him out of the two estates rate-
ably, according to the respectire values of such two estates, and thus
to leave the surplus proceeds of each estate to be applied in payment
of the respective incumbrances thereon."
Barnes v. Raester did not establish any new principle. It
simply decided that, if there is a third mortgage in the cose, affecting
the estate, which one only of the two former mortgages affects, then
the second mortgagee shall not be allowed to disturb the third mort-
gagee's right, by throwing the entire of the first mortgage on the
second estate ; and that in such case the first mortgage shall be paid
rateably out of both estates. But in that case it was assumed that
the former principle was established. In the case where an owner
mortgages one estate first to A, and then to B, and subsequently
gives A a mortgage upon a second estate, to secure the same debt,
B's equity arises the moment the second mortgage to A is made.
But, in the present case, we have to consider, not mortgages at all,
in that sense, but judgments, which are totally different Judg-
ments, immediately on their acknowledgments, bound all the
property of the conusor ; and the question is, when did the right con-
tended for on part of the judgment creditor, to have the securities
marshalled, arise ? It arose, if at all, the very moment' the judg-
ment was entered ; therefore it follows, according to the argument
on behalf of the respondents, that they might then have said to the
mortgagees, *' You must now proceed on your collateral judgment,
and arrest your debtor, the mortgagor, or levy your demand by exe-
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CHANCERY REPORTS. 353
cation of his chattel property ; " in other words, " You must do the
1861.
Ch, Appeal
In re
JudgtHent*
very thing which the mortgagor endeavoured to avoid, by borrow
ing the money *' — a transaction to which the respondents themselves i^awder's
were parties. No new right rose upon the purchase of Flower HilL estate
Therefore the old doctrine of marshalling has no application to the
present case. This is a mere question upon the contract in the case,
and that contract plainly was, that the respondents would not seek
to have their claims paid out of Harristown until the mortgagee's
claim had been first satisfied out of that estate. I agree that, if it
were once established that an equity existed between the respond-
ents and the judgment creditors, t^en the rateable distribution
sought for could be enforced, in accordance with the authority of
Barnes v. Raater. The judgment of the Court below appears to
me to have been, in this respect, founded on a misapprehension, and
must be reversed.
The Lord Justice of Appeal.
The respondents in this appeal were entitled to two charges,
each for £500, portions of a charge affecting the lands of Harris-
town. They joined in a mortgage of these lands, giving the mort-
gagee priority. These lands have been sold for a sum not sufficient
to pay the amount of the mortgage, so that nothing remained to
pay the respondents, and the result is an extinction of their claims,
and a total exoneration of the lands. But the order of Judge
Dobbs has worked out a remedy — or, at least, a partial remedy — by
making another estate, that of Flower Hill, which was acquired in
the year 1841, four years after the execution of the mortgage, con-
tribute to pay the mortgage debt, thereby releasing a portion of
the proceeds of the sale of Harristown from the mortgage debt,
aud preserving and appropriating so much to the payment of the
two charges of £500, thus restoring and giving back to the respond-
ents the very property which they had released. It is obvious that
snch a process and such an operation is not the result of contract.
Indeed it is the very reverse ; for, by the contract, the lands and
purchase-money were, in the above events, absolutely released. Is
there, then, any rule of Equity, which, without contract, and,
VOL. 11. 45
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354
CHANCERY REPORTS.
1861.
Ch» AppeaL
In re
LAWDEH's
ESTATE.
Judgment.
indeed, in contravention of it, revives and reinstates these charges
upon the proceeds of the estate ? The reason or foundation of such
an equity is not supplied by anything in the mortgage deed. The
priority of the charges is unequivocally released, and the only
remedy it provides is, that of the personal covenant in the mort-
gage. Again, there is no pretext for contending, nor has it been
argued, that the relation of surety and principal arose between the
owners of the charges and the mortgagees, which could entitle the
former to the benefit of the collateral securities. On none of these
grounds has the case been piit. The decision of Judge Dobba^ hold-
ing that Harristown and Flower Hill should each contribute rateably
to the discharge of the mortgage of £1600, is founded wholly on
the authority of Barne$ v. Bacater (a). I am of opinion, however,
thftt the present case is distinguishable from Barnes v. Booster^ in
essential particulars, and that the latter case is not an authority for
the decision we are reviewing. A brief consideration and compari-
son of the facts of the two cases will make this dear. First, it vnll
be seen that the mortgage made to Barnes, in the year 1800, com-
prised the two estates, Foxhall and '* No. 32 ; " that is a leading fiust^
to be always k^pt in mind. Bacster bad, firstly, mortgaged Fox-
hall to Barnes in 1792; secondly, he mortgaged the same estate,
Foxhall, to Hartwright in 1795 ; and, thirdly, in 1800, he mort-
gaged both Foxhall and the estate called ** No, 32 ** to Barnes, to
secure both the former debt and a further sum. The effect of thia
last deed, in improving the security of Hartwright, as it was held
to do, was the result of the provision which made Barnes' earlier
demand of 1792, as well as the new loan, a charge on both the
estates of Foxhall and *^ No. 32." The decision in his &voiir,
which threw the debt of 1792 partly on '* No. 32," was the neces-
sary effect of the actual agreement between Bacster and Barnes,
carried into execution by 'the deed of 1800. See how clearly this
is laid down in the Vice-Chancellor's judgment (p. 408) :-i— ^* As to
the matter to be determined, the observation to be made is, thai,
considered without any reference to Hartwright or Williams, the
nature and effect of the security of 1800 were, as I conceiTe, to
(a) 1 Y. &CoU., C. C.,401.
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CHANCERY REPORTS. 355
make • No. 32 ' and Foxhall pari passu^ and rateably according
1861.
ESTATE.
Judgment.
to their values, liable to Barnes' two charges; " and then he exem- ^^- —
plifies this, by referring to the consequences, if the two estates had lawder's
gone in different courses of descent. This compact, making both
estates liable to contribution, is the sole reaspn and ground of the
deciaion. We must, therefore, now consider whether, in the case
before us, there was any agreement or compact that Flower Hill
(which, I may say, corresponds to ** No. 32 ** in Barnes v. Racster)
was to be contributory or liable to pay the mortgage ?
Flower Hill was not acquire4 by the mortgagor until 1841. This
circumstance, though it may weaken the claims of the respondents,
cannot make them stronger than they would have been if the mort-
gagor had possessed Flower Hill, when he executed the mortgage in
1837. Now let me consider for a moment what would have been
the operation of the deeds of 1837, if he had, at that time, possessed
Flower Hill ? The mortgagee would only have had the mortgage,
the covenant and the collateral judgment ; but what ground would
there have been for saying that, besides these remedies, he should
have had his demand charged on Flower Hill as well as Harris*
town ? Neither in the mortgage deed, nor elsewhere, is there a
pretence for such a claim ; yet it would be the actual conveyance
of both, by way of mortgage, that could alone assimihite the two
cases, and make the decision of Barnes v. Racster^ in any degree,
applicable to the case before us. The acquisition of Flower Hill,
four years afWwards, which detaches it from the antecedent deal-
ings, is not attended by any agreement, or any indication whatever
of any intention, to make it liable to the mortgage debt ; and thus
this case is totally destitute of the very matter which would warrant
the application to it of the decision in Barnes v. Racster.
Order reversed.
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356
CHANCERY REPORTS.
1861.
Ch. Appeal,
In re the Estate of Sir JOHN NUGENT HUMBLE, Devisee of
THOMAS JOSEPH FITZGERALD, Owner and Petitioner;
Ex parte JOHN MAGRATH, Appellant.
Jl%28.
This was an appeal on behalf of John Magrath, an incumbrancer
upon the lands sold in this matter, against an order made by
An affidavit
filed for the
purpose of
registering a
judgment as Judge Hargreave in the Landed Estates Court, by which he ruled
under t^pro- ^^&^ ^^^ affidavits filed for the purpose of converting a judgment
l3*&*U^Ftc.! ^^^ * mortgage, under the provbions of the 13 & 14 Ftc., c. 29,
c29,wa8enti- wf^rii invalid
tledinthemar- were mvaiia.
of^D.^'^in^he ^^^^ Magrath obtained a judgment in Trinity Term 1852,
TOunty of Wm against Thomas Joseph Fitzgerald (the owner of the lands sold
i£F; T. J. F., in this matter), for £400, l)e8ides £3. Is. lid., for costs: and on
of B., in the ^ •> »
county of W., the 2nd of June 1853, proceeded to register the same as a mort-
£sq., defend.
ant" Theaffi. gage against the said lands, under the 13 & 14 Fic, c. 29.
that J. M., The affidavit filed for that purpose ran as follows : —
of, &c&c,had
recovered a "/» the Court of Queen's Bench.
judgment ^^^ « j^^^^ Magrath, of Doon, in the county of
defendant in^ Waterford, former. Plaintiff;
this cause, by Thomas Joseph Fitzgerald, of Ballinaparka, in
the name and thecountyof Waterford, Esq., Defendant
of ThoiniM ^nd the Act of the 13 & 14 Vic. , c 29.
Joseph Fitz- !
John Magrath, of Doon,
in the title hereof, in the
^county of Waterford, far-
mer, aged thirty years and
ISh^' ^ upwards, the plaintiff in this cause, maketh oath and saith that he,
i^ ^ ^^ ^^*® deponent, by the name and description of John Magrath, of
"Esq "—Held, Doon, in the county of Waterford, farmer, did, on the 14th day of
that the above
was a sufficient October, in the year of our Lord 1852, and in or as of Trinitj
description of ~ .
the name and Term, in the said year of our Lord 1852, obtain a judgment in
known place of Her Majesty's Court of Queen's Bench in Ireland, against the
defendant. defendant in this cause, by the name and description of Thomas
5few6&,that Joseph Fitzgerald, of Ballinaparka, in the county of Waterford,
affidavit, filed Esq., for the sum of £400 sterling, besides £8. Is. lid. for coste;
nnder the pro-
visions of the
21 & 22 Vie., c. 105, may he filed after the death of the conusor.
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CHANCERY REPORTS.
357
as by the records of said Court maj fully appear. This deponent
farther saith he,'' &c.
The appellant subsequently, on the 25th of June 1859, filed a sup-
plemental affidavit, under the provisions of the 21 & 22 Ftc, c. 105.*
The lands were subsequently sold in the Landed Estates Court ;
and, upon the settlement of the final scliedule of incumbrances, .
Judge Hargreave held that the affidavit originally registered was
invalid, on the ground that it did not sufficiently state the title,
trade or profession, or last known place of abode, of the person
whose estate was intended to be afiected thereby; and that the
supplemental affidavit, having been made afler the death of the
conusor, could not supply the alleged defect in the first affidavit.
Against that decision the present appeal was brought, on the
following grounds : —
First ; that the first affidavit was a sufficient compliance with
the 13 & 14 Vic, c. 29.
Secondly; that even if the first affidavit was defective, such
defects were supplied by the supplemental affidavit, inasmuch as
there was no provision contained in the 21 & 22 Fife, c. 105,
requiring such supplemental affidavit to be made in the lifetime
of the conusor ; nor any reason for requiring such restriction in
the construction of that Act of Parliament.
Statement,
Mr. T. Harris and Mr. Ryan^ for the appellant.
This affidavit substantially apd sufficiently states the name,
title, &C., &C., of the person against whom the judgment was
obtained. The margin states that the defendant in the case was
"Thomas Joseph Fitzgerald, of Ballinaparka, in the county
of Waterford, Esq.," and the affidavit states that the judgment
was recovered "against the defendant in this cause." A similar
affidavit was held to be valid, by Judge Lynch, in the Court of
Bankruptcy : In re Smith and Boss (a). They also cited In re
Goodyear (6).
(a) 6 Ir. Jut., N. S., 72. (h) 6 Jr. Jur., N. S., 11.
Argument.
* NoTB. — As the Court held the first affidarit to be valid, there is no occasion
for setting forth the supplemental affidavit.
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358
CHANCERY REPORTS.
Argvfnent,
As to the supplemental affidavit, there is no reason why it should
not be made after the death of the conusor. — [The Lord Chah-
CBLLOK. I certainly see none.J
Mr. Brewiter and Mr. ShekUtan^ in suport of the order of the
Landed Estates Court.
This affidavit does not fferify the usual or last known place of
abode. When the Act specifies that the '* usual or last known
place of abode " of the defendant must be mentioned, it does not
mean the place of abode at the time of entering^ the judgment.
Test the sufficiency of this affidavit by the question — could the
person who made it be indicted for perjury, if it were proved he
had never lived at the place of abode mentioned in the margin ? He
could not, for he does not pretend to swear to any such fact. This
Court held, in Re Fitzgerald (a)^ theii the requisites of this statute
must be strictly complied with. 3PDowell v. Wkeatley (Jbi) is an
authority against the validity of this affidavit. In Crosbie v.
Murphy {c) the affidavit was held defective, because the conusor
was described as "widow." — [The Lord Chancellor. In that
case it was proved that the widow had a trade.] — The margin is not
covered by the oath. The statute meant that there should be
the security of the oath of the party making the affidavit, as to
his last known place of abode. Suppose Mr. Fitzgerald had lived, .
from the time of his birth until the entry of the judgment, at
the pl^ce named, and a week afterwards had left it, that being
twenty years ago, would not the affidavit, in that case, be true,
and yet in direct opposition to the Act of Parliament? — [The
Lord Chancellor. The defendant in this cause is stated in
the margin to be ^* Thomas Joseph Fitzgerald, of Ballinaparka,
in the county of Waterford, Esq," If those words be sub-
stituted for the words ''against the defendant in this cause," in
the body of the affidavit, it will then run <* against Thomas Joseph
Fitzgerald, of Ballinaparka, in the county of Waterford, Esq.,"
which would be a complete compliance with the statute.] — The
(a) Ante, p. 278. (6) 7 Ir. Com. Law Rep. 562.
(c) 8 Jr. Com. Law Rep. 301.
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CHANCERY REPORTS. 369
statement of the title of the cause in the margin is not upon 1661.
Ch, Appeal,
oath ; and, moreover, it is merely the the title of the cause at * - ■ y ■ »^
In re
the time the judgment was entered. fitzoer*
They also cited Ponblanque v. Le^ (a) ; Pickard v. Bretz (h). ^"*'«
E8TATX.
Mr. Ryan^ in reply, cited Hewer v. Cox{e). Atyument.
The LosD Chakcellob.
We ' are of opinion that the first affidavit in this cause may Judgment.
be held good, without encountering any decision hitherto made
upon the construction of the Act of Parliament, and without
violence to the words of the statute, to common sense, or t6
reason. The Act requires the affidavit to state certain things;
among others, the names, the usual or last known place of abode,
and the title, trade or profession of the plaintiff and of the defendant.
Now it is said that this affidavit, although complete in all other
respects, is defective in this particular — that it does not state
the title and h»t known place of abode of the defendant. It states
that the judgment in question was recovered ** against the defendant
in this cause.'' The defendant in the cause is stated in the margin
to be " Thomas Joseph Fitzgerald, of Ballinaparka, in the county
of Westmeath, Esq." That, no doubt, is his description as it
stood at the time of entering up the judgment ; but the party,
when registering that judgment as a mortgage, says, in effect,
''I recovered a judgment against the defendant in this cause,
and he is that very man." Had there been a change in his resi-
dence, and had the affidavit stated that the judgment had been
recovered against Thomas Joseph Fitzgerald, of some other place,
by the name of Thomas Joseph Fitzgerald, of Ballinaparka, in
the county of Waterford, Esq.," that would mean ** I recovered a
judgment against a man who now is of such a place ; though at
the time of entering my judgment, he lived at Ballinaparka, in
the county of Waterford." Is the construction of the affidavit to
be altered because the man has not changed his place of abode,
(a) 7 It. Com. Law. Rep. 550. (b) 5 Exch., N. S., 9.
Cc) 30 L. J., N. S.. Q. B., 73.
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360
CHANCERY REPORTS.
Judgment.
bat resides at the same place as he did at the time of entering
the judgment ? The statement, as it stands in this affidavit, amounts
to an averment that the man against whose lands the judgment is
sought to be entered is Thomas Joseph Fitzgerald, of Ballina-
parka, ih the county of Waterford, Esq., and that he was so at
the time when the judgment was entered.
I think the original affidavit in this case perfectly sufficient;
and, therefore, I need not go into any consideration of the supple*
mental affidavit. I see nothing in the Act of Parliament io prevent
the supplemental affidavit being filed after the death of the conusor ;
but that question is not now before us. I think the original affi-
davit quite sufficient. The judgment of Judge Lynch, in Be
Smith and JRosi^ which has not been appealed from, and in which
I quite concur, is a sound exposition of the law on the subject, and
it is to the same effect.
The Lord Justice of Affeax..
I am quite of the same opinion ; and, if it were necessary, I am
quite prepared to say that there is nothing to prevent the supple-^
mental affidavit being filed after the death of the conusor.
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CHANCERY REPORTS. 361
1861.
L. E. Court.
EanHeH (eUdittii €onvt
In the Matter of the Estate of
CHRISTOPHER PLUNKETT, Owner;
JOHN DOONER, Petitioner.
Jan. 31.
This case arose from an incorrect description having been appended A, by bis will,
leaves to F.
to the name of a devisee in the will of Francis Macnamara, which M. F., and to
" his sister, M.
was duly made and published in the year 1820. The testator had, at f., my grand-
that time, and at the time of his death, which occurred in July 1822, shfureand'share
a daughter named Maria Faulkner, and two grand-daughters, Maria j»^ Dow^living
Faulkner and Catherine Faulkner. He was far advanced in life ; }^r^?M'"
but no proof of mental incapacity given. The will, as far as it is ?!J 5f* estates.
5 r y o » ' M. F. wlw not
material to the present case, was couched in the following terms : — 'hen living,
and had never*
** I bequeath to my dearly beloved daughter Maria Faulkner all my lived, while
ber sister, C.
estate, and all my personal property, in as large a manner as I do or F., was living,
and bad lived,
may enjoy the same at my decease, during her natural life; and, after for some time,
her decease, I leave and bequeath unto my grandson Francis Mac- ande M.—
namara Faulkner and to his sister Maria Faulkner my grand- extrinsic eri-
daughter share and share alike, said Maria Faulkner now living nf^^bk^to
in France ^ith her uncle Martin, all my estates in the town of ^^bf^ity^^ln
Ennis or elsewhere; and, in case my said grand-daughter shall the will.
die before she arrives at the age of twenty-one years, or else that there was
married with the consent of her guardians, then I bequeath her feet balance of
share to my grandson," &c Under these circumstances, Catherine toraspend^the
Faulkner, by way of objection to the allocation schedule, claimed a coiut. ^ ^
moiety of the estates devised to Francis Macnamara Faulkner and ^ ^^J^ ^^^9
^ tbat the name-
Maria Faulkner, on the ground that, notwithstanding the use of the should control
the descrip-
name ^' Maria," she Catherine must have been the person intended tion, and that
M. F. was,
by the testator, since the description was applicable to her, but not therefore, end-
tied.
to Maria. -,
It appeared from the aflTidavita of Maria Faulkner (now Maria 'S'«'«"«»'«
VOL. 11. 46
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362 CHANCERY REPORTS.
1861. Papeira) and Catherine Faulkner (now/ Catherine Plunkett) that
X. JS. Court. ^
^' ' Catherine had gone to reside, in 1817, with her ancle William
In re
pujnkett's Martin, in France, and had stayed with him until 1822. That
ESTATE. Maria had never resided in France; but the preponderance of
Statement, testimony went to show that she did not reside with the testator ;
that she had lived at various times in IVIalta, England, Wales and
Ireland, and that, at the time of making the will, she was most
probably resident in Carlow with her micle Henry Faulkner. The
testator, at the time of making his will, was seventy-one years of
age ; and it was sworn that, soon after that time, he became inca-
pable of managing his affairs. These were the only material facts
in the case.
Mr. M. B, Smithy for the petitioner.
Mr. S. B. Millar and Mr. Trevor, for the objector, Catherine
Plunkett.
Mr. J. E, Walsh and Mr. J. H. Orpin, for Maria Papeira.
Argument. On the question of admission of extrinsic evidence the following
cases were cited i^Delmare v. Robello (a) ; Holmes v. Cusiance (b) ;
Stringer v. Gardiner (c). On the question whether the name or
the description should be treated as determining the object of the
gift, the following cases were cited, among others : — Newboh v.
Pryce (d) ; Doe d. Gains v. Bouse {e) ; Standen v. Sianden (f) ;
Smith V. Campbell (g); Stockdale v. Bushby{h)\ Bemasconi y.
Athinson(i)i Smith v. Coney (A); Bradshaw v. Bradshaw(i);
Bennett v. Marshall (m) ; Camoys v. BlundeU (n) ; Feltham's
Trusts (o) ; Beaumont v. Pell{p) ; other cases collected in Jarman
on Wills, vol. 1, p. 313, and 2 Taylor on Evidence, p. 974.
(a) 3 Bro. C. C. 446. (6) IJJ Ves. 279.
(c) 27 Beav. 35. (</) u sim. 854.
(e) 5 C. B,. O. S., 422. (j) 2 Ves. jun. 589.
ig) 19 Ves. jun. 400. (A) 19 Ves. jun. 381 .
(0 10 Hare, 345. (j^) 6 Ves. jun, 41.
(0 2 Y. & C, Exch.. 72. (m) 2 K, & J. 740.
(«) 1 H. of L. Cm. 786, 791. (o) 1 K. & J. 52a
0») 2 P. Wms. 141.
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CHANCERY REPORTS.
363
D0BB8, J»
The question in this case arises on the construction of the will
Feb. 20.
Judgment,
1861.
L. E. CwTt,
of Francis Macnamara, which bears date the 22nd of August 1820. flunkett's
No doubt arises on the will, taken per se ; but the doubt arises bstate.
from extrinsic evidence, from which it appears that the testator had
two grand-daughters, one, Maria Faulkner, who was not living in
France, and another, Catherine Faulkner ; and she was, at the date
of the will, living with her uncle Martin in France. The first
question is with regard to the admission of parol evidence. The
rule of law is settled that, where there is no ambiguity on the face
of the will, but the ambiguity is shown l>y extrinsic evidence, then
parol evidence will be admitted to explain the will. There is ano-
ther principle, which is this, that the Court, in construing a will,
will receive any evidence which places it in the same situation, as
to a knowledge of facts, which the testator was in at the time he
made the wilL It is quite clear, therefore, that parol evidence may
be received in this case, to show that Maria Faulkner was not
living with her uncle Martin in France* The parol evidence shortly
amounts to this ; the testator was upwards of seventy years of age,
and lived at Castletown, in the county of Clare ; he had two grand-
daughters—one, Maria, and the other, Catherine. There is not
very much evidence with regard to the facts connected with their
residence at the time (it is upwards of forty years ago) ; but it
appears clear from that evidence that Catherine Faulkner was
residing at that time in France with her uncle Martin ; while, at
the same time, it appears that Maria Faulkner was not residing
with the testator, as it was alleged, but that she had been travelling
about with another uncle, and that the testator resided at Castle-
town, in the county of Clare; but that there was another place
of the same name in Ca'rlow, where Maria resided at the date of
the will. That is the only material evidence, as it appears. There *
is one thing which would be very material in the construction of
the will; and that is, if it could be shown that Maria Faulkner
was of age at the date of the will. There is, however, no evidence
of that ; and indeed it is quite clear that she was under age at the
time of the will. If she had been af age, and Catherine had not,
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364 CHANCERY REPORTS, ,
1861. then the limitation over in case of her dying under age would have
Z. E, Court,
v.-i-^v'^^ been applicable to Catherine only, and not to Maria. That would
In re
plunkett's have made all the difference in the construction of this will. Then
ESTATE, ij^^ question is, whether the testator, having bequeathed the pro-
Judgmenf, perty to '* Maria Faulkner, living with her uncle Martin in France,"
the name *^ Maria" is to prevail over the description, "living with
her uncle Martin in France,** according to Lord Bacon's maxim,
Veritas nominis ioUii errorem demonstrationisf and, secondly, whe-
ther the bequest is void for uncertainty ?
There was some reason to contend that it was void for uncer-
tainty ; but there are two cases which show plainly that the princi-
ple of law is, that if it is possible to give a reasonable construction
to the words of the bequest, it is not to be held void for uncertainty ;
and this case comes within the principle of those cases. The first
of these cases is Adams v. Jones (a). In that case the question was,
whether, under this bequest, " I give to Clare Hannah Adams, the
wife of Thomas Adams, of Walworth aforesaid, writing-clerk, the
sum of nineteen guineas," the wife of Thomas Adams, whose name
was Hannah, or his daughter, whose name was Clare Hannah (and
who, at the date of the will, was an infant two years old), was in-
tended, or whether the gifl was void for uncertainty ? In that case
the Vice-chancellor Turner observed — '*A disposition cannot be
avoided for uncertainty, if the Court can arrive at a reasonable
degree of certainty. In this case, I think the party to be benefited
is reasonably certain." The same was laid down in Bemaseoni v.
Atkinson (6), where the Vice-Chancellor observed — " If it were res
integra we should be much disposed to hold the devise void for
uncertainty ; but the cases of Doe v. HuthwaHe^ and Bradshaw t.
BradshaWj are against this conclusion." These cases show that, if
it is possible for the Court to come to a reasonable concludon, the
bequest will not be held to be void for uncertainty. Taking it then
that, in this case, a reasonable conclusion can be arrived at, the next
question is, whether the name or the description is to prevail?
A number of cases have been cited, which, in point of (nci, are
not applicable exactly to the present case ; for this reason, that they
(a) 9 Hare, 486. (6) 10 Hare, 350.
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CHANCERY REPORTS. 365
yiere cases in which there was no person of the name used by the
1861.
Z. E. Court.
In re
testator. The name used was not the correct name of any person.
I do not Uiink, therefore, that those cases are applicable, with the plunkett's
exception of one. Lord Camoys v. Blundell{a\ and in which the estate.
principles of construction, in such cases, are laid down in the opi- Judgment,
nions of the Judges. At p. 786, Baron Parke says, '* It may be
conceded that where a devisee is described by his Christian and
surname, and some other distinctive circumstance, and no person
answers both descriptions, and there is nothing in the rest of the
will, or the admitted evidence, to show who was meant, the name
would prevail, and the descriptive circumstance would be rejected.
But the maxim veriias nominii toliit errorem demonstraiioni* is
not inflexible, as has been explained by Lord, Chief Justice Gibbs,
in the case of Doe v. JSuihwaiie, For, if it be clear, upon the due
construction of the will, with reference to the evidence of the state
of the £unily as known to the testator, that the meaning of the
testator, as expressed "by the will, was, that the person described, and
not the person named, was to take, the description will prevail over
the name ; for the rule in question has no other object Uian to assist
in discovering the meaning of the will, and is not applicable where
it leads to a construction contrary to the expressed meaning of the
testator."
Nothing can be clearer than the principle laid down by Baron
Parke in that case. The question then which I have to decide is,
whether I can come to a reasonable conclusion that Maria Faulkneir
was the object of the testator's bounty, or that he meant Catherine
Faulkner ? I have come to the conclusion that, in this case, the tes-
tator meant Maria Faulkner, his grand-daughter, and that the prin-
ciple '* veriias nominii iollii errorem demonetrationis ** must apply,
and that the further description of ^* now Lving with her uncle
Martin in France'' was a misdescription, and should be rejected.
Maria Faulkner . is, therefore, entitled to a moiety of the fand in
Court
It is a remarkable thing in this will, that the testator does not
appear to have mistaken the Christian-name of anybody. In almost
(a) I H. of Lords Cases, 778.
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366 CHANCERY REPORTS.
1861. all the cases the Christian-name of some one was mistaken, but here
«^.»ly '' there was no mistake whatever. In the gift he does not describe
flunrett's Maria Faulkner as living in France. Her name in the phrase
ESTATE, giving the gift is not embarrassed with any description. It is not
Judgment, till afle^ the gift (which is complete in itself) that the description
comes as if in a parenthesis, thus — ** I leave and bequeath unto my
grandson Francis Macnamara Faulkner and to his sister Maria
Faulkner mj grand-daughter share and share alike (said Maria
Faulkner now living in France with her uncle Martin), all my
estates," &c» It is not the bequest which shows that the person
Who was the object of his bounty was living in France with her
uncle Martin* The gift is a distinct gift to Maria Faulkner, and
the place of her residence merely pointed out incidentally. I can
very well imagine that an old gentleman having two grand-daugh-
ters, neither of whom lived with him, would more easily and
naturally mistake the description than the Christian-name. He
first gives a life estate in the whole to.his daughter Maria Faulkner.
That was the same name as his grand-daughter Maria, and makes
it less likely that he should have made a misuke in the name.
Putting all these things together, I have come to the conclusion that
the name is correct, and the deschription is to be thrown over.
There is in Kay ^ J.^ p. 528, a case (In re FeUham's TrueU)
which has been referred to, and which appears to be a very strong
case in favour of the opposite view to that which I have taken. In
that case there was a bequest of £100 to Thomas Turner, of
Regency-square, Brighton. The testatrix had two nephews, the
said Thomas Turner, who did not live in Regency-square, and
James Turner, who did live there. Extrinsic evidence was ad-
mitted, and a prior will was produced, made three years before, in
which the testatrix had given a legacy to Thomas Turner, of
Regency-square, Brighton, surgeon. James Turner was a surgeon ;
and this fact was held to be conclusive evidence in his favour, as it
had not been shown that the testatrix had discovered her mistake as
to the name, before she made her last will. Now there was in that
case one element which is .not to be found in this, and which appears
to have been the chief reason of the decision, namely, that the lady
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CHANCERY REPORTS.
367
had made a prior will, and had there described the intended object 1861.
T jp Court
of her bounty as a surgeon, which was not the profession of the sL.^^ *
person named. In that case the Court, in order to have given effect flunkett's
to the name, must have disregarded, not a misdescription in point of estate.
residence merely, but two misdescriptions, one in point of residence, Judgmemu
and one in point of profession. This makes a broad distinction
between the present case and that of Feltham^s Trusts,
In the case of NewboU v. Pryee (a), there was a bequest to John
Newbolt, second son of William Stranways Newbolt, Vicar of
Somerton. The Vicar of Somerton was William Robert Newbolt.
His second son was Henry Robert, and his third son John Pryce.
It was held that John Pryce Newbolt was entitled to the legacy.
The Vice-Chancellor thought there was sufficient " Veritas nominis "
to take away the ^* errorem descriptionis**
Upon all these grounds, I think the object of this gift is Maria
Papeira.
(a) l4Si]n.S54.
In the Matter of the Estate of
JOHN K. EDWARDS, Owner;
Ex parte ANNA MARIA DOWLING, Petitioner.
The question in this case was raised on a motion by the petitioner, to
make the conditional order for sale, previously granted by the Court,
absolute. Cause was shown against making the order absolute, by
P. W. Jackson, a mortgagee on the estate. Jackson grounded his
opposition on his deed of mortgage, dated the 8rd of May 1859.
This deed contained a proviso that Jackson would not call in the
sum secured (£2600) until two years had elapsed, or twelve months'
interest had accrued due; and **that in case one full year's interest
gagement entered into at the time of
/iMel2.
A_jaiortgagorf
by a~ proTiso
in a mortgage
deed, agreesm
a certain event
to sell to B,
the mortgagee,
for a flxd
sun, part of
mortgaged
premises. —
Betd, that the
proTiso was
totally Toid,
as being an
onerous en-
tfae mortgage.
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368 CHANCERY REPORTS.
1861. on said principal sum of £2500 shall become due and be unpaid
Z. E. Court, . ^ . , . ^ . ^ /. . .1
at any time during the said period or two years, or in case the
EDWABDs' *^^^^ ^ Edwards shall, at the expiration of the said period of
ESTATE. i^Q years, be unable to redeem the mortgaged premises, it shall
^tatemenL and may be lawful for the said Peter W. Jackson, his exe-
cutors, administrators or assigns, if he or they should so elect
or prefer, tp purchase for his or their own use and benefit ; and
the said J. K. Edwards doth hereby for himself, his heirs and
assigns, promise and agree to sell and absolutely convey, by all
necessary deeds and assurances in the law, to the said P. W. Jack-
son, his heirs and assigns," the part of the mortgaged premises
called Old Court, for such sum as, with the sum of £2600, and
interest then due thereon, would make £4000. Jackson now,
relying on this agreement, contended that Edwards was boqnd
to complete the conveyance of Old Court to him.
Argument. Mr. R, R, Warren (with him Mr. Wm. Woodroffe) appeared
for the owner and the petitioner.
Mr. Brereion appeared for the objector, P. W. Jackson.
Mr. Warren. — The cause alleged is a proviso or condition pf
forfeiture of the mortgagor's equity of redemption, contained in the
deed of mortgage itself. This condition is void, for it is incon-
sistent w'.h the doctrine '^ once a mortgage always a mortgage.''
The very terms of the proviso are that, in default of redemption
in^two years^ the right to, redeem should be lost for ever, and the
mortgagor obliged to sell to the mortgagee out-and-out. Even if the
condi(;ion were good in law, it is gone ; for it is not shown that the
mortgagor was unable to redeem on the day named ; and on that
day the mortgagee should have elected to take advantage of the
condition. The case is like a condition of re-entry at Common
Law for non-payment of rent, when demand must be strictly made.
Reference was made to the cases collected at s. 1019 of Story*$
Eq. Jur,^ and Coote on Mortgages^ p. 14 ; Crui$e*i Dig.^ tit. Mort-
gage^ p. 7 1, 4th ed. ; Jennings v. Ward {a) ; WiUei v. Winnell(b).
(c) 2 Vera. 520. (*) 1 VeriL 488.
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CHANCERY REPORTS- 369
Haborbatk, J. 1861.
I have 116 doobt that this agreement on the part of Mr.^ Edwards, w^';-.— > '
to sell the Old Court estate for £4000, in the event of his not being bdwabds'
able to redeem the mortgage on the 4th of December I860, is totally bstate.
Toid, and ought to be disregarded by a Court of Equity. June 14.
The rule of Equity is, that no onerous engagement of any de-
scription can be entered into by a mortgagor with his mortgagee
on the occasion of the mortgage. I do not doubt that if this contract
had been entered into by Mr* Edwards with Mr. Jackson, after the
completion of the mortgage transaction, and when Mr. Edwards had
got the money in his pocket, it would be perfectly valid ; but then
the mortgagor would be under no kind of pressure, and he would be
able to exercise his unbiassed judgment, as to whether it was a fair
contract. But when the contract i^ part of the arrangement for the
loan, and is actually inserted in the mortgage deed, it is presumed '^
to be made under pressure, and is not capable of being enforced.
If the land had fallen in value below £4000, Mr. Jackson would
have insisted on being treated as a mortgagee ; but, as it has risen,
he says he is a purchaser : that b, he gets a collateral benefit over *^
and above his principal and interest, which a Court of Equity never
permits.
This contract is virtually a clause of foreclosure pn a fixed day ;
and even in England, where foreclosure is possible, it only takes
place after a bill has been filed for the purpose, and after the mort-
gagor has had one or inore days fixed for paying the debt.
In the Matter of the Estate of
The Assignees of WILLIAM RODDY, Owners;
Ex parte FRANCIS FITZGERALD, Petitioner. j^^ ^^
Ths question in this case arose on the ruling of the final schedule. A mortgages
Blackftcre to
The facts appear in detail in the judgment. B, and giToa
him as a
coUateial security a jadgment which attaches on both Blackacre and White-
VOL. 11. 47
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370
CHANCERY REPORTS.
1861.
X. E. Court,
Argument,
June 2i.
Judgment.
Mr. Frederick Smith appeared for the petitioner.
Mr. Robert Owen, for the mortgagee, Robert Clifford.
Mr. David Sherlock and Mr. John M^MahoUy for the judgment
creditor, Martha Fitzgerald.
Reference was made to Hartley v. O^Flakerty (a) ; Averall v.
Wade (b) ; Handoock v. Handeook (c).
DOBBSy J.
William Roddy, the late owner of two teveral freehold estates
which have been sold in this matter, and which, in the course of the
argument of the question now before the Court, have been called
respectiyelj the mortgaged and the unmortgaged lands, was indebted,
by judgment of Hilary Term 1834, to Martha Fitzgerald ; but the
said judgment, not having been either re-docketed or re*registered
until the 28rd of July 1865, has been placed upon the schedule of
incumbrances, after the. several charges on the lands prior to the
latter date. As the consequence is that the funds in this Court,
representing all the lands sold, both mortgaged and unmortgaged,
without separating the amount produced by the sale of ihe former
from that produced by the sale of the latter, will not be sufficient
to pay Martha Fitzgerald's judgment debt in the priority in which
it now stands, she has by an objection raised the point now to be
decided. It is this: — William Roddy, by deed dated the 4th of
September 1833, mortgaged the lands which have been called the
mortgaged lands, to Henry Fulton, to secure £1600, and gave the
then usual judgment collateral to secure the said sum ; this judg-
ment is of Easter Term 1834, but, having been first re-registered,
takes priority of that of Hilary Term 1834. By indenture of the
(a) li. & G., temp. Flank., 206. (6) LI. 4 G., temp, Sng., 252.
(c) 1 Ir. Chan. Rep. 444.
aero. SabsequenUy B assigns his debt and securities to .C, and A at the same time
mortgages Blackacre to C for a further sum, with.acotenant against all incum-
biances except the mortgage to B. — Heldt that C, as against a pnune incumbrancer,
is entitled to be paid the debt assigned to him by B out of Whiteacre first, so as to
leave Bladcacre unimpaired to meet the second mortgage made to C himself.
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CHANCERY REPORTS.
371
21st of October 1842, and made between Henry Folton of the first 1861-
J E Court
part, William Boddj of the second part, and Robert Clifford of the ' '
third part, the mortgage of the 4th of Septeikiber 1833 is assigned
to Bobert Clifford, and, by the same deed, William Roddy gives a
further mortgage of the same lands to Robert Clifford, to secure Judgment
advances to be made by him to Wm. Roddy, to the amount of £600 ;
and by indenture of the same date, the judgment of Easter Term
1834 is assigned in the common form by Henry Fulton to Robert
Clifford. Now Martha Fitzgerald contends that Robert Clifford must
be paid the whole sum due on account of the mortgage of 1 833,
out of the produce of the sale of the mortgaged lands alonCf and
that the residue thereof is the only fund applicable to the payment
of the subsequent mortgage of 1842, for £500 additional. The'
representative of Robert Clifford contends that he is, by virtue
of his judgment collateral, entitled to be paid what is due in
respect thereof out of the unmortgaged lands, or at least rate-
ably out of them and the mortgaged lands, so as to leave the
produce of the mortgaged lands or the residue to pay what is
due on account of the second mortgage of 1842.
The deed of assignment and further mortgage of 1842 recites
the mortgage of 1833, and contains a covenant by Wm. Roddy,
that the principal sum of £1500 thereby secured is due, and
that the lands are free from all incumbrances except the said
recited mortgage ; and also a covenant by Wm. Roddy for quiet
enjoyment, and ihe common form of covenant for further assurance
by Wm. Roddy and Henry Fulton. I do not see that the judgment,
being one collateral with the mortgage of 1833, instead of being an
independent security, can make any difference ; as, if so, the effect
would be to make Robert Clifford worse off, by being entitled
to the mortgage as Well as the judgment of 1833, than he would
have been if he had had the judgment only.
If the deed of 1842 contained no covenant against incumbrances,
the only distinction between this case and that of Handeoek v.
Handcoch (a) would be, that the same person is entitled here to
both securities ; for if Henry Fulton had retained the mortgfige
(a) 1 Ir. Clian. Rep. 444.
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372
CHANCERY REPORTS.
1861.
X. E. Court.
Judgment,
and judgment of 1833, and there was no covenant against incum-
brances, this case would not have been distinguishable in principle
from that case, and Robert Clifford would have thrown Fulton's
mortgage on the unmortgaged lands, leaving the mortgaged lands
free for his (Clifford's) mortgage, on the authority of AveraU ▼.
Wade (a), as extended by Handeoek v. Handeoek to cases where
there is no covenant against incumbrances, but where there is
a covenant, as here, for quiet enjoyment.
The question then comes to this — does the exception of the
mortgage of 1833 from the covenant against incumbrances make
the difference, inasmuch as, by the terms of the deed of 1842, the
security taken by Robert Clifford for his £500 advanced is only
what remains of the mortgaged lands after payment of the mort-
gage of 1883 ? and if it does not, does the fact that Robert Clifford,
the same person, is owner of both mortgages and of the judg-
ment collateral with the first, make any difference? I cannot
see that the exception makes any difference, for the words are
in the affirmative, that the lands are free from all incumbrances
except the prior mortgage; and it would place a restriction, for
which I kno^ of no precedent, on the meaning of those words,
to hold that they were to confine the security of the second
mortgage to the value of the lands, after deducting in every
event the whole suiin secured by the first mortgage. Although
the lands are by the covenant subject to the first mortgage, it
could hardly be contended that, therefore, the second mortgagee
was not to have the benefit of any pfiyment on account of the
first mortgage out of the personal estate of the mortgagor ; and
if so, should he not have the benefit of any equity that would
arise aliunde^ to relieve the lands in whole or in part from the
first mortgage?
I think, therefore, that notwithstanding the wording of the
covenant against incumbrances, the second mortgagee can throw
the first mortgagee, as being also a judgment creditor, on the un-
mortgaged lands.
The circumstance of R. Clifford being himself ehtitied to both
(a) L. & G., temp, Sng., 252.
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CHANCERY REPORTS. 373
securities appears to me to make the case more feivourable to 1861.
L.E, Court*
his right to thirow the first mortgage on the unmortgaged lands,
than if he had not been entitled to the first mortgage and judg*
ment. For he could, by virtue of his judgment, have proceeded
to recover the whole amount due out of the unmortgaged lands; Judgment*
and if he had done so, the case of Hartley v. O^ Flaherty {a)
shows that, in such an event, the parties having subsequent
charges affecting the unmortgaged lands would have no equity
to be recouped out of the mortgaged lands.
For these reasons, I think the representative of R. Clifford
entitled to be paid the sum due on account of the mortgage and
judgment of 1833, at the very least rateably out of the mortgaged
and unmortgaged lands, which will leave enough of the proceeds
of the mortgaged lands to pay the sum due on the mortgage of
1842; and, therefore, that the rulings and orders for payment
already made on the schedule are to remain unaltered.
Objection overruled accordingly, with costs*
(a) L. & G., teMp. Himk., 208.
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374 CHANCERY REPORTS.
1860.
Ch. Appeal,
Court at Hfftal in CiAnttvp.
DODDS V. DODDS.*
Nov. 27.
Bequest of por'^ This case came before the Court upon an appeal from an order of
tel real "to the Lord Chancellor, dated the 4th day of June I860, by which
?Sfdtie8^^- ^^ S^^^ relief to the petitioner, under the following circumstances : —
^e\iu^ By lease, dated the 30th of October 1799, lands were demised for a
F"d fiJlfl^to ^^"^ ®^ twenty years, with a toties. quoties covenant for renewal.
his brother R. The lessee's interest became Tested in G^rge Dodds, who, in 1842,
I also order ° '
that the part obtained a renewal for twenty years. In 1847, George Dodds
of the lands
which I be- made his will, which, so far as material, was as follpws : — ^ I leave
queath to my •
son J. is to and bequeath to my son Robert that part of land that Felix
youngest son, Conly lived in, which I hold by a ioHous quotious covenant of
^comtom^." renewal. I also order, that if my son Robert takes a notion to sell
F^d not take ^^*^ P**"^ ^^ ^^^^ which I bequeath to him, that I will not permit
an absolute jjjm ^ ^^ ^ anyone but his brother John. I also order, that if my
interest in his ^ ^ ^
portion of the gon Robert dies without a lawful meal heir, his part of lands falls
lands, and that ^
the gift oyer to to his brother John. I also order, that the part of land which I
B. was not too
. remote. bequeath to my son Robert is to fall to his youngest son, without
Statement, any incumbrance. I also leave and bequeath to my son John that
part of land which I lived in at the time Conly had the other part ;
I also order, that if my son John takes a notion to sell that part of
land which I bequeath to him, that I will not permit him to sell to
anyone but his brother Robert. I also order, that if my son John
dies without a lawful meal heir, his part of the land falls to his
brother Robert. I also order, that the part of lands which I
bequeath to my son John is to fall to his youngest son, without any
incumbrance." These lands were the, lands comprised in the lease
*" Coram The Lord Chancellor, Lord Justice of Appeal and Mr.
Justice Ball.
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CHANCERY REPORTS.
375
of 1799, and the renewal of 1842. In 1849, the testator died,
leaving hia said two sons, Robert Dodds the petitioner, and Johti
Dodds. The petitioner having emigrated to America, John Dodds
obtained a fee-farm grant of the lands comprised in the lease of
1799, under the provisions of the Trinity College, Dublin, Leasing
and Perpetuity Act. In 1869, John Dodds died intestate and with-
out male issue, leaving one child only, a daughter, who was named
as a respondent to the petition, and never having had a son.
The petition in this suit was filed in I860, stating the above
facts, praying that Robert Dodds should be declared entitled to the
said lands, and for a conveyance, and an account of the rents and
profits. The respondents alleged a sale of the petitioner's interest
to John Dodds, and relied on the construction of the will, as giving
an absolute interest to John Dodds ; but the petitioner, by his
affidavit in reply, denied the sale to him, and relied oi^ the
Statute of Frauds.
The account of rents and profits was waived at the Bar.
[See this case reported in the Court below, vol. 10, p. 476].
1860.
Ch. Appeal,
DODDS
V, '
DODDS.
Statiment,
Mr. C Andrews and Mr. Kay^ for the appellant.
Mr. Seijeant Lawson and Mr. Arthwr Jaekion^ contra.
Wynoh*i Trusts (a) ; Gummoe v. Howes {b) ; Doe d. Burren v.
Charlton {o) I Knight v. Ellis (d); Doe r. Laming {e) ; Good*
little d. Peahe v. Pegden (f) ; Feame Con. Bern., p. 164. Britton
Y. Twig (g) ; Per. Prof. Booh, p. 132 ; Idle v. Coohe (h) ; Jesson v.
Wright (i).
Argmnent.
The LoBD Chanceixob.
When this case came before me in the^Court below,! came to Judgment.
the conclusion that the testator had, by his subsequent language,
(a) 5 De G., M. & G. 18&
(c) 1 Scott, N. S., 290.
(0 2 Burr. 1100.
(S) 3 Mer. 176.
(0 2 Bill.
(6) 23 Bear. 184.
(<0 2 B. C. C. 570.
Cf) 2 T. R. 720.
(A) 2 Lord Ray. 1152.
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376
CHANCERY REPORTS.
1860.
Ch, Appeal,
DODD8
V.
DOBD8.
, Judgment,
explained what he meant by the words *' male heir." I thought that
there was evidence to show his intention to change the course of
devolution from the direction which it would have taken if the
propevtj were to descend to heirs of the body, or heirs male of the
body, which would have required an estate tail, and would have
given an absolute interest in personalty. It is plain that these
words, strong as they are, are capable of explanation, that they
may be modified so as to show an intention to give to other persons
than those who would take by descent. This distinction is estab-
lished by a lopg class of cases, and is admitted even in Jesson v.
Wright. These cases were referred to by Seijeant Lawson, and
collected by Mr. Jarman (a) ; and they show conclusively that these
words are capable of explanation ; and that if they are used in such
a way as to show that they meant not heir in a general sense, but
son or child, then they must be modified, and receive the sense
affixed to them by the testator. I quite agree with Mr. Andrews,
that, in order so to modify the words, language must be used which
cannot be misunderstood.
Mr. Kajf has argued, very ingeniously, that these words only
mean that when the estate descends to the youngest son, if it ever
does so descend, it is to come to him without incumbrance ; but I
cannot help seeing that such is not their true construction, and that
it is intended that the youngest son should take in remainder — an
arrangement wholly inconsistent with the gift of an estate tail, and
which would disturb the line of descent. Where that is the case,
there are authorities to say that the efiect is not to create an estate
tail. Their efiect is thus summed up in 2 Jar. WiUt, p. 802 : —
*' But it seems that if the superadded words of limitation operate to
change the course of descent, they will convert the words on which
they are engrafted into words of purchase, as in the case of a devise
to a man for life, remainder to his heirs, and the heirs female of
their bodies.''
That, to some extent, illustrates the view which I took of this
case in the Court below. There is the word ^'son," or rather, there
are the words *' youngest son," used in a way quite inconsistent
(c) 2 Jar. on Wills, 312.
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CHANCERY REPORTS.
377
with, and which excludes, the idea of an estate tail in the eldest son.
On these grounds I think that, on the face of the will, there is ample
evidence, which cannot be misunderstood, of the sense in which the
testator used the words "heir of the body."
The Lord Justice of Appeal.
I agree with the Lord Chancellor, that this appeal should be
dismissed, and the decree affirmed. The first clause in this will,
which is the only direct disposition of the property to John Dodds,
would have given him the interest, which was leasehold, absolutely ;
but this effect of it was liable to be controlled and varied by the
subsequent words of the will ; and it is so varied by the intention
which is subsequently expressed, and to effectuate which his interest
must be limited to an estate for life. There can be no doubt that
it was competent in the testator to do so ; but it was contended that
this has not been effected, because the second bequest, that is, the
bequest over to Richard, is, '* if John die without a lawful heir male ; "
and it is argued that, as these are words of limitation sufficient to
give John an estate tail in real property, they have such a fixed
and . infiexible operation as does not admit of their control by the
subsequent clause or clauses of the will. From this argument I
altogether dissent ; it is quite at variance with authority, and would
fetter the power of the testator, in a manner not to be recon-
ciled to the law, that his intention, however collected or expressed,
is to be effectuated. Have we, then, in this will an intention that
the heirs male of John were not to take, as they would take if he
were tenant in tail male? There is, in my opinion, in the limita-
tion over to the youngest son of John, the most explicit evidence of
the intention that all the sons were not to take in succession (as
heirs of his body) ; but that, on his death, the youngest of his sons
should take the whole interest — to the total exclusion of his elder
brothers, not one of whom could, therefore, ever succeed to the pro-
perty as heirs male of their father, without a violation of the plainest
evidence of the intention to exclude them. Thus we have an un-
equivocal disposition of the property on John's death, that negatives
the inference and construction that, by that, the preceding clause
VOL.11. 48
1860.
Ch, Appeal.
Judgment*
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878
CHANCERY REPORTS.
1860.
Ch.ApjptoL
DODDS
V.
DODOS.
Judgment,
was intended to transmit the property to the heirs male of John,
according to their seniority.
Mr. Justice Ball.
I am of the same opinion as the Lord Chakcellob and the
Lord Justice of Appeal. It has been assumed, at the Bar,
that the words used were *' heirs male. Or heirs male- of the body."
Now those words are very difficult to deal with, and are treated in
all our Courts as the most embarrassing and inflexible which can be
employed ; but they do not occur in this will. The gif^ here is, if
the son should die without a male heir, which is not so conclusive
in its effect ; and then it is clear that the words *' male heir ** have not
been used in their proper sense, for he has directed the property to
go to the youngest son, without any incumbrance. If it so devolved,
it would not go to the heir male ; ^nd thus the use of this expression
gives a construction to the words " heir male,'' and shows what the
testator really means. We are bound to give to those words the
construction which the testator intended them to have ; and it 10
plain, beyond all doubt, that his meaning was, that the estate should
go to the youngest son of John, in the first instance, and then, for
want of a younger or any other son, that it should go over.
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CHANCERY REPORTS. 379
1860.
ChoHperp,
DORAN V. CARROLL.
(In Chancery.)
Deo. 3.
The petition in this case was filed by Mrs. Sarah Letitia Doran, by Where a les-
see, bound by
her next friend ; and stated that, by an indenture of the 20th of covenant not
to commit
February 1856, Edmond Doran demised, for three liyes or thirty- waste, has
committed acts
one years, to the respondent, Thomas Carroll, the lands of Ninch, of waste, for
with the mansion-house and other lands, reserying timber, timber g^ merely no-
trees, woods and under-woods ; with a coyenant by the said respond- J^ giyen,^ the
ent to maintain all timber and timber trees, and that none of the £??"1m?**««I
' eery will not
same should be cut down, lopped or injured, without the consent entertain a eoit
of the said Edmond Doran, or his heirs; and a coyenant by the founded on
those acts of
lessee to repair, preserye and keep all edifices, buildings, wall- waate, where
it appears that
fences, gates, gateways and improvements in good repair. It he does not
contemplate
further stated that the said Edmond Doran died in 1857, without committing
any further
issue, whereupon the petitioner became entitled, for her separate waste, nor as-
use, to the reversion in the said premises expectant on the deter- ^mmiru* No
mination of the said demise, for her life, with remainder to her ^^^ ^^3
eldest son in tail. The petition further alleged that, in the month ^^^ b **^e
of January or February I860, the respondent had broken down Chancery
and removed a wall in the garden in said demised premises, which Act 1858.
A tenant, by
wall was sixty yards long, or thereabouts, nine feet in height, and replying to a
two feet in thickness, and had fruit trees growing on each side bi^ withthe
of it. That the respondent had dug up fruit trees in the garden, ^^ste and re-
and had cut down and lopped a large quantity of timber trees 2^^oomi«n^
growing on the lands, without any consent, and cut down, injured JfS?*t ^^ ^*'
and removed a ver^anum* tree, of considerable value, in the lawn, in prepared to
defend any ac-
the said demised premises, and several ornamental and fruit trees, tion which may
be brought
against him,
and to show that, so far from having committed injury, he has materially improved
the premises demised to him," does not assert a right to commit the waste com-
plained of.
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380 CHANCERY REPORTS.
1860. including a large number of apple trees, in the said garden ; and
ChaMC€ru»
that he had opened a gravel-pit, about nine feet long, about three
feet wide, and about three inches in depth, in the said premises, on
a rising ground in front of the said mansion-house ; and that it was
Statement. ^^^ intention of the respondent to dig gravel from the said lands.
The petition further stated that the respondent had lopped eight or
nine evergreen trees, so as to deteriorate them in value.
The petition stated the above, amongst other matters, and prayed
for an account of timber, timber trees, ornamental timber and fruit
trees, cut down, and of the injury done by opening a gravel-pit, and
breaking down walls and fences, and for an injunction against cut-
ting timber, and throwing down walls and fences, or committing
other waste, and for damages.
Prior to the fiUng the petition, the petitioner's solicitor had writ-
ten to the respondent the following letter: — "I am directed by Mr.
and Mrs. OTerrall Doran to take the most summary proceedings
against you, under the covenant in your lease, for the cutting large
quantities of timber, breaking down and destroying valuable stone
walls, and otherwise injuring the premises demised by the lease
The penalties and consequences, as to what you have done as to the
cutting of the trees,. are very serious ; and I require you to inform
me, on or before Friday next, whether you will pay the penalties
already incurred under your lease, and stop any further damage to
the trees. I beg likewise to inform you that my clients have sus-
tained heavy damage, by reason of your throwing down and
removing the walls ; and I require you to inform me, by the above
day, whether you are prepared to pay such damages, or have the
walls re-constructed.''
In answer to this, the respondent's solicitor wrote: — *'Mr. Carroll
has forwarded to me your letter, with instructions to reply to it, and
to appear for him. I will not put you to the trouble of serving him
with a summons and plaint ; but, if you will be good enough to fur-
nish me with a copy, I shall appear for Mr. Carroll in the usual
way, and am quite prepared to defend any action which you may be
instructed to bring against him, and to show that, so far from hav-
ing committed the injuries you have mentioned, he has materially
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CHANCERY REPORTS. 381
improved the premises demised to him. The lease in question was
prepared by me; and I happen to know all that sobeequentlj passed
between the parties to it, and am quite prepared to meet the claims
set up by Mr. and Mrs. OTerralL Mr. Carroll informs me that
your clients asked him to go to stay at Ninch for a few days, which
be allowed them to do ; and that the return which he gets for his
civility is a threatened action, the materials for which appear to
have been collected while on a visit in his house. I shall make no
comment on this, but leave it to be judged by a jury.**
Shortly after these letters (which were put in issue), the petition
was filed ; and to it, Mr. Carroll put in an answering affidavit, by
which he stated that, when he took the lease of the lands of Ninch,
the house was out of repair, and the lands in an exhausted condi-
tion. That he top-dressed and drained portions of the lands, and
repaired and improved the house, and had expended in such repairs
and improvements about £1000. He further alleged that Edmond
Doran had given his permission to cut down certain trees, for use
on the premises; but Doran denied that, since the petitioner came
into possession of the premises, he had cut or lopped a single tree
on the premises. He admitted that he had taken down a wall in
the garden, alleging that it had been injurious to the garden, and
applied the materials of it in raising another garden-wall, to keep
off the east wind, and that the trees which had been trained on it
had a better prospect of bearing fruit than they had before. He
further allied that, on an occasion when the removal of the wall
had been pointed out to the petitioner, her husband, who was pre-
sent, said that it was a great improvement. He further alleged
that he had deposited the stones of the wall, which were unfit for
building purposes, in a waste spot of the lands, and that he never
intended to remove the stones off the lands, but did intend to apply
them for drainage and other purposes on the lands. The respondent
further averred that he never cut, injured, lopped or uprooted a
single evergreen, tree or shrub on the premises ; but that his gar-
dener grafted some good apples on some crab*trees through the
plantations, and that two holly-trees were carried away by the'
1860.
Chamcery,
Statemtni.
JJ^
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382
CHANCERY REPORTS.
1860.
Chancery,
Argument,
petitioner herself; and he denied making any gravel-pit, and that
it was his intention to commit further acts of waste.
Mr. Serjeant Sullivan^ Mr. David Sherhek and Mr. Curtis; for
the petitioner.,
£yen on the respondent's admission here, waste has been com-
mitted ; and, under the present law of the Court, it has jurisdiction
to award damages in that case, even if the respondent have no
intention of committing further acts of waste. But in his solicitor's
letter to the petitioner he justifies his conduct, and asserts that
he can defend it. That brings the case clearly within Tipping
V. Aekersley (a) and Johnston v. Hall (b).
Judgment.
Mr. Brewster^ Mr. Hugh Law and Mr. J. F, Townsend, contra.
The respondent, upon the evidence, is plainly an improving
tenant, and does not intend to commit any further acts even of
technical waste. The amount of damage actually done by the
waste established in this case is so small that it comes within the
principle of Lambert v. Lambert (c), as being below the dignity
of the Court. The Chancery> Amendment Act 1 858 does not
confer any new jurisdiction upon the Court; it merely gives an
additional remedy, by assessing damages in cases where the jurisdic-
tion by injunction attaches. In Tipping v. Aehersley^ the defendant
contended that he had a right to continue the acts of which com-
plaint was made, while the respondent here disclaims all intention
of committing any further act even of technical waste. His letter
does not allege a right to do anything injurious to the reversion.
The Lord Chancellor.
In this case, it is quite plain that there is not any case either
for an injunction or for an account. This is a suit in which the
petitioner sues as reversioner expectant on the determination of a
lease, made to the respondent, Thomas Carroll, by the late Mr.
Edmond Doran, who, it is alleged, was tenant for life under the
(a) 2E. &J.264.
(6) Ibid, 414.
(c) 2 Ir. Eq. Rep. 210.
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CHANCERY REPORTS. 383
will of Denis Richard Doran. It has been suggested that Mr. 1860.
ChoHcenf*
Edward Doran had no power to authorise or consent to any act ^ , '
. , , mt. DORAN
of waste, or to permit the tenant to cut down any trees, ine ^^
frame of the present suit, however, is not pointed to relief on that carboll.
account. It does not allege that Mr. D6ran had not the power to Judgmau,
make the lease, but, on the contrary, makes the case that the lease
is binding, but the covenants broken. If the suit were constituted
to impeach the lease, it would be a case for another mode of triaL
Here, however, the question simply is, whether the conditions of
this lease, or any of them, have been infringed by the tenant?
The first alleged breach of duty to which I shall advert is the
destruction of the wall. That occurred some time ago. Undoubt-
edly it is an act of waste ; but it has been accomplished ; and it is
now entirely for the consideration of a Court of Law. The wall is
prostrate, and there is an end of it. It is clearly not a case in which
a mandatory injunction to re-build the wall could be granted ; so
that, as to this, it is a simple case to go to a jury, and I believe that
no jury would give substantial damages ; and if the case were to
go into the Master's office, I am quite sure that it would come back
with a report of damages one shilling. Then, as to the trees, the
respondent here does not contend that he has a right to cut down
one single tree; he admits that, as to the timber, he is bound to
maintain it ; and, therefore, it is not in the least like Tipping v.
Aekersley (a), wher^ it was insisted by the plaintiff that one con-
struction ought to be given to the instrument, and by the defendant
that its true meaning was quite different. The suit in fact was
founded on a question with respect to the extenl of the contract, the
defendant claiming a right to do the things to which the plaintiff
objected. Here, however, that is not the case. The respondent
admits the whole instrument ; he admits that he is bound not to do
any waste, and he proves that this was his case, by showing the
consent, be it good or bad, which he had obtained from Edmond
Doran in his lifetime, and from the petitioner afterwards ; and he
shows that he stopped when her consent was revok^ji. Under all
these circumstances, if I were to send the case into the office, I
(a) 2 K. & J. 264.
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384
CHANCERY REPORTS.
1860.
Chamcery.
think it would not produce any beneficial result to the petitioner.
The respondent swears that there has not been a tree cut down
^ since the petitioner wrote to withdraw her permission. Possibly
CABBOLL. a case might have been made in another aspect ; but the petition
Judgment. ^ °o^ framed for relief against the representatives of the prior
tenant for life; and an account in it could give nothing. The
evidence here clearly satisfies me that the respondent has not the
least intention to cut down any further treed, or pull down any
other wall. I have evidence of some small damage, for which,
perhaps, a jury would give one shilling damages ; and, if the peti-
tioner wish, she can* try her hand in an action, or a civil-bill ; but
this suit I consider most vexatious ; and I will, accordingly, dismiss
the petition with costs.
I^eg. Lib., 26, /. 336.
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CHANCERY REPORTS. 386
1860.
Bamktctf,, jrc
tfdiirt of Kanktufttp atitr iniBlhtntp^
In re JOHN ROBINSON, a Bankrupt.
Nov. 9, 10.
This ease came before the Court on a special case stated by con- The adjadica-
_, - - - - , ... tion in Ire-
sent. The facts of that case, so far as they are material to the land, bj the
points decided, are set forth fully in the judgment of the learned s^on ^267
T»ii/»A Testi the pro-
•'■^g^- perty of iht
bankmpt, sita*
ate in a foreign
Mr. H. H. Joy and Mr. Jame$ Keman^ for the assignees. S^*«' "» ™
^ ® aangnees, so
This case must be decided with reference to the laws of this f*f ^ the law
of this connl
itnr
cooBtry : HunUr v. PoU$ (a) ; Smith ▼. Bttekanan (b) ; PoUer v, is conoemed.
Bra^pne^e); Alison ▼. Fumivai(d}; Stoty^ Conftkt of Laws^ NewYork^re-
a. 331, citing Probyn ▼. Browne; and same book, pp. 90, 91, 94 ^^Jjnextent)
(ed, of 1866) ; Selkrig v. Bonis (e). Personal property has no ^ "^ ^
locality: Story, Conftiei of Laws, ss. 410, 428, notet ^^tten ^'
A British
Mr. B. C. Heron and Mr. G. May, for the Northern Banking bankrupt, who
Company (Uie claimants). mSlns^^of'the
The judgment of the Court in America, by which these goods fo^ J^^g^^
were declared to be the property of the Northern Banking Com- ^^o^^d in
pany, is not impeached on the ground of fraud It was regularly ^^^?^ ^ ^^
obtained in a suit in which the assignees appeared. I do not press bankropt situ-
ate in that
the effect of this judgment in America more strongly against the State is, mthi^
Conrty answer-
assignees than as a nonsuit ; but the whole proceeding shows what able for them
was the proper course for them to take. It -has never been held ees.
that a judgment properly obtained in another country can be th^^^S^I?** ^^
treated by the Courts here as mere waste paper. The proposition ^W°f®* ^
(a) 4T.B. 182. (6) 1 East, 6. "^^J"
(c) 5 East, 123. (rf) I Cr., M, & B. 29«. ,
AraumaU.
(0 2 Rose, 291 ; S. C. 2 Dow. 280, 260.
* Coram Lynch, J.
VOL. 11. 49
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386
CHANCEEY REPORTS.
1860.
Banktcy^ ^.
In re
B0BIN80N.
Argument.
that, here, by the bankruptcj all the property of the bankrupt vests
in his assignees, most be taken subject to the universal rule that
the right to the possession of goods can only be enforced by an
action in the country where the goods are situate. Abraham v.
V. Plestero (a) is a leading case on the subject. The second point
ruled in this case is that, by the law of New York, the adjudi-
cation in England does not, even as between the bankrupt and the
assignees, absolutely pass the property of, the bankrupt situate in
New York. The effect of the adjudication is merely to give the
assignees a right to sue for the recovery of the property in New
York. — [Ltnch, J. How can they have a right to recover the
property in New York, if the adjudication does not vest it in
them?]— They might proceed on the statutable act of insolvency.
On the common principles of international law, the effect of the
adjudication must be subject to the laws of the country in which
the goods are situated. — [^See last case, p. 548, and the passage in
2 Kenfs Commentaries there cited.] — ^If the assignees claim a right
to these goods, arising out of the proceedings in the Courts here,
there must be a correlative right arising out of the proceedings in
the American Courts, and the judgment there must discharge the
debtor ; otherwise England would be the only country whose judg-
ments are to be enforced beyond its own shores. If the assignees
were now to bring an action for these goods, we should plead the
judgment in America, and notice of it to the assignees. This judg-
ment is clearly a judgment in rem as against the goods in America :
Hojfte V. Thompson (b).
Mr. Jfay, on the same side.
The proceeding in America commenced as a proceeding inier
paries^ but ended as a proceeding in rem; and, therefore, although
personalty has no location, the goods in this case are bound by
the American judgment: Kennedy v. Casselis(e)i Reimers v.
Jhuce (d) ; Duchess of Kingston's ease («), where aU the authoritiea
(a) 8 Wendell Bep., in Snprem6 Court New York, 538.
(4) 1 Selden Bep. 820 (Appeal Court, N. Y.).
(0 2 Swan. 826. (<f) 28 Bear. 145.
(0 2 Sm. L. C. 593.
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Argtameni.
CHANCERY REPORTS. 387
on thia subject are reviewed, and CammeU y. SeweU(a). The 1860.
assignees copld not sue the Northern Banking Company, either in v.— ^-^-^
contract or in tort^ for these goods: De Medina v. Grave (b)^ which robinson.
shows that this case comes within the exception mentioned by
Lord Eenyon, in Hunter y. Poit* (c). On the general question, he
cited Rieardo v. Gareias (d) ; Boyse v. Coklough (e) ; Pennell y.
LhydCf).
Mr. Keman^ in reply.
The question here is as to the effect of bankruptcy on a subject
of this country residing here ; not as to the rights of a creditor
who is not a subject of this country, and who does not reside in it.
The adjudication vests the property absolutely in the assignees,
as against the creditors of the bankrupt in this realm : Selkrig y.
Davis {g)\ Hunter y. PotU{h)\ Phillips v. Huntsr{t)\ Sell y.
Wosmek{h). The question would be entirely different if a creditor,
a subject of America, and residing there, claimed as the Bank here
does. As to the situs of personalty. Royal Bank of Scotland
V. Suin (/).
As to the American authorities cited, there is no decision come
to at all in the case in Selden; the Court differed in Hoyte y.
Thompson^ pp. 382, 341 ; Holmes y. Remnonijn). The other cases
cited do not in any way touch the question. In conclusion. Counsel
submitted the following propositions: —
1. — The judgment in America was not a judgment tn rem,
2. — That judgment only binds parties to the suit in which it was
pronounced ; and the asmgnees were no parties.
3. — The result of the decisions on the point is, that a subject of
this realm, residing in it, bound by its laws, cannot be listened to
when he attempts to contravene the laws of this kingdom ; and,
(a) 3 H. 4 N. 617. (6) 10 Q. B. 152.
(0 4T.R.182. (<0 12C1.4F.368.
(«) IK. 4 J. 124. 09 9I>eO.,M.4G. 126.
(g) 2 Bom, Bank., 291, 815. (A) 4 T. R. 182.
(0 2H.BL408. (A) 1H.B1.685.
(QT 1 Bow, 462: (m) 29 Johns. 229 (Bep. in Sup. Court N. T.>
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388 CHANCERY REPORTS.
1860. therefore, whatever might be the effect of the adjndicatioii, as
amncy,, ere, ^^^^^ ^^ American citizen, who claimed theae goods under a
ROBINSON, judgment of the Americto Courts, the Northern Banking Company
cannot be justified in so claiming them, contrary to the Bankrupt
Laws of this kingdom.
Cur. ad. vuU.
ArgwmmU.
Ltnch, J.
JudgmeM. ^^ this matter, a special case has been stated by and between the
assignees of the bankrupt and the Northern Banking Company,
whereby they submit to the judgment of this Court their respective
rights and claims, arising out of the state of facts set forth in the
special case. This case has been argued before me at considerable
length, but not more so than its importance demanded. The lead-
ing facts of the case lie in a narrow compass, and briefly are : —
John Robinson the bankrupt, in and prior to 1858, carried on trade
in Ireknd ; and the Northern Banking Company are an InocMrpo-
rated Company carrying on their business in Ireland; and they
were creditors of the bankrupt in respect of a debt contracted in
Ireland.
On the 16th of February 1858, John Robinson was adjudged
bankrupt by this Court ; and such abjudication was duly gazetted
on the 25th of February 1858 ; and the case states that the North-
ern Banking Company had notice of the adjudication on the 28th of
February 1858. The case then states the subsequent surrender of
the bankrupt, and the choice of assignees. The case states that the
bankrupt had sent goods to America, to his ton, to be sold on com-
mission. The case does not state where the goods were at the time
of the abjudication ; but \ construe it as stating that the goods so
sent had arrived, and were in America at that date.
On the 19th of March 1858, the Northern Banking Company
took proceedings in the Supreme Court of New York, and attached
the goods in question, then being within the State of New York.
These proceedings were for the enforcement of the debt of the
Bank, contracted in Ireland ; and the attachment was a proceeding
for security to answer the. final judgment of the Supreme Court
of New York.
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Judgment,
CHANCERY REPORTS. 389
On the Slat of Maroh, a claim of ownership of the goods was I860,
made to the Sheriff of New York, in consequence of which an
inqoiry bj a jury took place ; and one of the assignees was exam-
ined. The case does not state the finding of the jury (if any), nor
does it in any way show the result of this collateral proceeding ; but
it appears, in the documents, that the Northern Banking Company
were compelled to give a bimd of indemnity to the Sheriff; and
thereupon, notwithstanding such claim, the goods were treated and
dealt with as the property of the bankrupt I think that the finding
should have been stated, and that, where a proceeding like this is
stated at all, the statement should be complete, and not left imper-
fect as now ; and, as the object of all parties should be to have
a satisfactory decision on the actual facts, that now an amendment
should be made, stating the facts. However, I construe the state-
ment as showing that the decision was in favour of the assignees'
daim ; as otherwise I cannot understand the statement that the
Bank were compelled to five an indemnity, or the subsequent pro-
ceedings in America ftgainst the bankrupt.
The case goes on to state that the suit by the Northern Banking
Company proceeded in America ; a plaint was filed in the Court
there, on the 29th of March, and a plea was put in by the bankrupt
on the 21st of June, pleading his bankruptcy. Judgment was subse-
quently entered in that action on the 1 1th of September, and that is
a judgment for the debt, and an award generally of execution there-
for. However, on. the 29th of September, there is an order in the
action, regulating the operation of the execution on the judgment,
and providing for a special defeasance.*
It appears that the assignees intervened in that suit in America, by
petition, on the 18th of September, alleging collusion in the parties
* NoTS.-^The following is a copj of the order as appended in the schedule to
the present case : —
*' At a Special Term of the Supreme Conrt of the State of New York, held in
and for the City and County of New York, on the 29th day of September
'* Present, Hon. Henbt £. Davis, Justice.
"The Northern Banking Company 1 ^ ^^^^^ ^^ ^^^ ^^^^^ ^
'^' r notice of motion, and on hearing Mr.
John Bobinson et aL ^ p^^ for the plaintife, and Mr. Boaid-
man for the defendants. It is ordered that the plamtifis hare jndgment for the
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390 CHANCERY REPORTS.
1860. * to the suit, and praying leave to commence an action, and for a
Banktcy.t SfC* - .. , . , . . ,. . • ,
* — -, Stay of proceedings, on which petition a conditional order was
Tn re
K0BIN80N. gi*&nted by the Court ; affidavits also were filed ; but. on the 28th of
JudgmekL
September an order was made for liberty to withdraw said petition,
and that such withdrawal should be without prejudice to the rights
of the petitioners.
Accordingly execution then issued, and on the 4th of October the
Sheriff sold the goods, and distributed the amount, satisfying the
judgment and patting i)ver the surplus to the assignees.
The question now for my consideration is, " Whether the said
Bank is liable to pay to the assignees the said sum of £791.
16s. 10^., so received by them, under said proceedings in New
York, or not ? or thd value of the goods sold at the time of the
sale, or not ? "
Now, in deciding this case, the fir^t question that arises is, what
is the effect and the extent of the assignment effected by the statute
on the adjudication by this Court ? What property passes thereby
to the assignees, as far as the bankrupt's chattels are concerned ?
By section 267 of our Act 20 & 21 Ftc, c 60, all the personal
estate and effects of the bankrupt, present and future, ** wherever ike
same may he^ vests in the assignees. " This enactment is without
limitation or stint, as large and comprehensive as words can announce
it. I hold that, as far as our laws are concerned, the assignmefht is
without any limitation whatever ; and, in truth, the very question .
raised in this case shows that this is the operation of the statute ; for
the question raised is, whether, by the comity of nations, this vesting,
pronounced by the Law of England,' is to be recognised in America
as altering the property in goods there ? I do not think the laws
of any foreign f^ountry are, in this^ respect, at all regarded by our
Act ; the property vests in the assignees as their goods by our law.
amount claimed in the complaint, with the costs of this action, to be entoed, bnt
to be only enforced against the property attached by the Sheriff of the County
and City of New York, in this action, and without any personal liability against
the said defendants, and to be no lien on any property real or personal, other
than that attached ; and on sale of said property by said Sheriff, it is ordered
that said judgment be satisfied and cancelled of record."
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CHANCERY REPORTS. 391
and, as far as out law can operate, it gives the absolute owner- 1860.
ship and property in the goods, though in a foreign State, to the .-^^-^*
assignees. The judgment of Lord Eldon, in Selkrig v. Davis (a), robinson.
and every other judgment on the point, bears out this primary pro- judoment.
position ; and in no case is the operation of the laws of any foreign
State regarded as a limitation introduced into our statutable assign-
ment ; pur assignment is general and without limit ; our law may
be incapable of operation in a foreign State, unless our rule of pro-
perty be there recognised ; but this does not prevent the operation
of our law, as between the subjects of this realm, working the
entire assignment of rights.
But then there arises, in this case, a question as to what is the
Law of America, or rather the State of New York in America,
respecting such statutable assignment? Does the Law of New
York recognise the effect of that assignment as passing the pro-
perty in chattels situate within the boundaries of that State ? This
is properly a question of fact, the laws of a foreign State not being
within our judicial cognisance, and, therefore, their existence neces-
sarily being a fact to be established in our Courts. On this, as a
question of fact, I am almost entirely without legal evidence ; but
both sides have, without objection, cited to me the American author-
ities, and neither were furnished with any legal evidence to lay
before me. Had I considered that this was the principal point of
the case, or that I was required to expound the American Law on
this subject, I would require legal evidence to be laid before me
respecting it, and I would not rely on my own research into the
American authorities, as a proper foundation for a judgment In so
serious a case. The authorities have been cited to me, and I have
examined them. Very many conflicting dicta have been relied on
on both sides ; and the question as to what extent this firiendly State
adopts, by the comity of nations, our Laws of Bankruptcy, in
respect of the assignment worked by our laws, seems to me a
question of considerable interest, and, as to its extent, not well set-
tled in the American tribunals. That they (or that we, in a
similar case,) adopt such assignments as being as wide in their
(a) 2 Rose, 291.
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392 CHANCERY REPORTS.
I860. operation there as we have made them, is certainly not true, nor
. — ^, — Z^ would it be just that it should be so ; the domestic creditor could
BOBINSON. ^^^ ^ affected hj it without manifest injustice, and every State is
_"; — authorised to protect its own subjects from the operation of a foreign.
Judgmtni*
law made for the protection of the subjects of such foreign State ;
therefore I think it is certain that our statutable assignment does
not per se operate as a necessary transfer. But it seems to me
that the American Law does not treat our assignment as a nullity ;
some authorities go the length of stating their actual recognition of
it. Those on the opposite side, while denying the validity of the
transfer, admit, at the same time, the recognition of the adjudication
as ascertaining a representative character in the assignees, perhaps
in the sense of an indefeasible power of attorney from the bank-
rupt to his assignees. Here, at all events, I find a recognition of
our assignment, to the extent of recognising the assignees in their
Courts as parties entitled to exercise rights and claims to the pro-
perty of the bankrupt. In this case the proceedings in the suit in
America were referred to as showing that the assignees' title is not
at all recognised in the Courts there. I confess thai these pn>ceed-
ings, as set forth in the case, are to me not fully intelligible. The
plea raised the very question of the operation of our assignment ;
and if I had before me a demurrer to that plea, allowed by the
American Court, or the proceedings as to the proof of it, it [head-
ing a matter of fact, there would be ground fw relying upon it ; but
at present I do not understand a plea in disehar^e^ and next an
order for judgment, with a special mode of execution. Unless by >
the submission of the defendant, I do not see how that judgment
could have been awarded. But, in these very proceedings, I find
that, a balance remaining of the goods seized, the Sheriff expressly
states in hia return that he has handed the surplus to the assignees,
thereby recognising their claim.
Without, therefore, in this case, professhig to expound the Law
of America applicable to our statutable assignment, to this extent^
at all events, I think it operates there, viz., that the wsignees have,
in the American States, a recognised claim to obtain the chattels of
the bankrupt, and that the Courts there will recognise them as
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hire
BOBINSON.
Judgment,
CHANCERY REPORTS. 393
entitled thereto ; whether as being already ia poseession, or onlj as I860,
having a claim enfordble, I do not now decide. w_>!..^'
But now how stands the case on this view of the law, as at the
lowest it is, in America ? A creditor of the bankrupt has notice of
the bankraptcj, has notice that this property has been assigned to
answer fiis as well as the other debts ; and in contravention of our
law, and to the prejudice of the other creditors, he proceeds in a
foreign tribunal to obtain, according to their local laws, a prefer-
ence for himself, by anticipating the proceedings of the assignee, in
collecting the assets. I doubt how far this can be made a question
of foreign law at all ; if the property passed by our law, and if
the foreign State would aid in its recovery, at best the foreign law
enablea the assignee to recover the property of bankl'upts, but it
alters no property here ; and, after the recovery of it, the property
is still assets of the bankrupt, and, I think, the party who has re-
covered it must answer for it here.
The foreign law was but a means for the creditor obtaining pos-
session of the property which belonged to the assignees ; aqd the
manner of obtaining that possession, collaterally to the real title,
cannot alter the rights of parties in our Courts ; subject, however,
to the question principally argued before me as to the effect of a
judgment obtained, as the judgment was in this case, in a foreign
Court.
It has been argued that this was a judgment tn rem^ and was the
decision of a Court of competent jurisdiction on the very question of
property in these goods. It is not necessary for me here to consider
what would be (he effect of such a judgment, obtained in a suit in
which the assignees were not parties, and wherein the parties might,
by consent between them, enable the Court to pronounce such a
judgment; for I have the judgment set forth in the case, and that
judgaient id an ordinary judgment of recovery in a suit inter parUSy
and awards a general execution to satisfy the judgment ; an ord4»r
of the Court exists regulating the extent of the execution, and con-
fining its operation to the goods in question, and making them the
only subject-matter on wlitch it shall operate. I am not informed,
by any evidence, how Mils wns pronounced; but it seems to me bus-
VOL. 11. 60
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394 CHANCERY REPORTS.
I860. piciouB in the extreme, in these proceedings, that ihe effect of the
li y '■ / ' judgment was confined to the taking of the goods of the assignee
&0BiN80N« (in which, perhaps, the bankrupt felt he had no interest), and
. " acqnits the bankrupt of all further liability in respect of the
Judgment.
debt. I hare said that the proceedings show no explanation of the
judgment on motion in a contested suit — that it would seem such
judgment must have been on some consent. But it is, on the point
just now under consideration, not necessary to rely on any matter
of this sort, for it seems to me perfectly clear that it is impossible to
hold this, as is contended for, a judgment in rem.
It is argued, however, that the assignees had notice of the suit in
America, and actually 'intervened in the litigation; and that, by
reason of such notice, and by reason of their intervention, it became
quasi a judgment tn rem*
A judgment tn rem is intelligible, and it is easy to understand
why strangers to the judgment should be bound; but such a quasi
judgment tn rem^ being effected by notice to a party not recog-
nised' in the suit, seems to me a proposition requiring very distinct
authority for its sustainment, and an authority so high as would
induce me to give up my perception of a very plain absurdity, in
deference to its admitted weight. None such, nor any at all, has
been cited for this proposition. But then it is insisted that the
assignees interfered, and thereby made it in effect a judgment
tn rem^ or, at all events, bound them by the judgment. This
contention makes it necessary for us to see how they intervened,
and to what extent. They first intervened by a claim of property
on the original seizure ; they pursued that claim until the Bank was
compelled to indemnify the Sheriff for dealing with this as the
bankrupt's estate. That was a collateral proceeding ; it made the
assignees no parties to the suit, and it ended certainly in no
proceeding adverse to their rights. They subsequently intervened
by petition, not as parties to the suit, but as third parties injarioosly
affected by its proceedings ; they made no claim as parties ; they
nought an injunction to restrain the proceedings until they them*
selves instituted a suit. It was as strangers to the suit, but affected
thereby, that they intervened ; and how this* could constitute them
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CHANCERY REPORTS. 395
quasi parties in the suit, I am at a loss to see. The intervention 1860.
in the salt, and then abandoning their claim, is fairly used against w-y — ^
them ; but then it appears it was not by consent of parties merely, robinson.
i)ut by order of the Court itself, that they were allowed to withdraw
without prejudice to their rights ; and it seems to me impossible even
fairly to contend that can now have the effect per se of concluding
their rights.
Therefore, I an) of opinion that this is not a judgment in retn^ or
a judgment quasi in rem, having the like validity. However, it is a
judgment of a Court of competent jurisdiction, and necessarily com-
manding the respect of our tribunals, and bringing with it the
sanction of such a decision. Were it a judgment in a suit in which
the assignees were implicated, it would be a totally different question ;
but here it is res inter alios acta. The assignees cannot be bound
by the proceedings in it; and simply as a judgment inter paries it
cannot affect the claim of the assignees, who were no parties therein.
Therefore, I hold that there is nothing like estoppel in this case —
nothing conclusive as a judgment in rem in this case. Is there then
in the facts stated anything to give this payment in full to this
particular creditor, in contravention of the rights of all the other
creditors, a binding and conclusive operation here? This is an
important question ; the extension of trade with foreign countries,
the growth of our foreign markets, make this a question of deep
interest. Every manufacturer, of any extent of trade, has his .
market in foreign countries as well as at home, and his produce
is to be found in foreign countries, and this is the legitimate
carrying on of his trade as a trader here. Well, he becomes
bankrupt — ^that is, as an honest man he confesses his insolvency,
and tenders fair justice to all his creditors, in offering to them all
his property for equitable distribution. Can it be the law that
any creditor has a right to look out for some foreign nation, in
whose territory part of the bankrupt's goods may be, and, gaining
precedence of suit there, to proceed in contravention of the law
made for his benefit, to gain for himself an unfair and inequitable
distribution of the assets, in payment in full? The assets will
admittedly go in a fair course of administration if he do not
Judgment.
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CHANCERY REPORTS.
1860.
Bmtktcy., 4*9.
In re
B0BIN80N.
Judffmgni,
intervene. Is it not againsl equity and Justice tliat the creditor
should so intervene? This admits the law of America to be as
contended for, and yet, even in that. case, when I get back the
goods here— in possession, of the creditor so conducting himself —
I cannot understand that such proceedings, so instituted to defeat
the purpose of the Bankrupt Law here, and in violation of the
rights created by it, have the effect of giving this creditor a right
to hold the goods in violation of our law.
The fact that he obtained them by the intervention of the laws
of a foreign State cannot, in my opinion, alter the property as
established by our laws; and more especially when the very seeking
of such intervention was in violation of the duties of citizenship here.
But, though I say this, I by no means admit that th)» American
law is open to any £ftir objection on this head. I think they
reoognise the title conferred on our assignees, to the extent that
justice requires, protecting their own citizens from its unfiair
operation as £ar as they are concerned, but never intending to
work it out so as to allow the foreign traders, for whose protection
the law was made, to make their country a means of working out
the defeat of their own institutions.
Perhaps the true ground of decision here is, that this is no ques-
tion of foreign law at all ; these goods are (or the produce of them is)
in the hands of the Bank, still the property of the assignees. No suit
m America or here, against the bukikrupt, can affect the title of the
assignees-^not as a question of foreign law or domestic law — but by
the rule that no man can beJ)ound by the aqts of a stranger ; there-
fore the property is undisplaeed, and is still in the assignees.
My judgment, therefore, is, that this money, the produce, and as
I take it the value, of these goods, shall be paid by the Bank to the
assignees. Perhaps this is not the fuU right for them, consequent upon
my judgment ; the expense of sale and other matters might be taken
into consideration, and the value of the goods might be the fair
measure of damages. However, I think it fairer, on the whole
circumstances, to take the amount realised as the measure of
damages ; and certainly, unless pressed on this point by the assignees,
I shall content myself with awarding this sum to be paid to the
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CHANCERY REPORTS. 397
assignees, together with the costs of these proceedings, on this 1860.
. , • Banhictf., j-c.
special case. ««-^-v '
I think the . Northern Bank acted fairly, and in a mercantile BOBiNSoii.
view liberally, in submitting this case to the judgment of this
Court, the tribunal by law established for the adjudication of the
most Important questions of mercantile law affecting the mercantile
public, they having, however, as I am glad to feel they have, a
right of appeal to the tribunal of the last resort upon the questions
raised. But in submitting, as they have done, to this Court the
question, I think they have acted in a liberal and commendable
spirit, saving much expense and much time; and therefore my
feeling is to make the judgment as light against them as I pos-
sibly can, and to give the relief only to the extent that, in any
view upon my judgment of the case in dispute, could be awarded.
Judgmtnt,
In re SMITH and ROSS.*
Dec 16.
This case came before the Court on charge and discharge. Creditors Statements in
the title of a
of the bankrupt, named Lewis, had marked judgment on a bond judgment
passed by the bankrupt some time before the bankruptcy, and had daTUmay be
filed a statutable affidavit to register their judgment as a mortgage ; ^^^^nce'
they filed no supplemental affidavit, pursuant to 21 & 22 Vic.j ^^ ^A^^de!
c. 105. After the registering of this affidavit the bankrupte lodged scription of Ae
their title-deeds of the premises sought to Ue affected by the affidavit ^® parties,
in an affidavit
with the Northern Banking Company, who claimed on foot of the to xegiater a
judgment as a
equitable mortgage thereby created, as against the statutable mort* mortgage, will
be snffidieBt if
gage, alleging that the affidavit registering the judgment was defec- it be their
• «» 1 *» » . . • ordinary trade
tive. The following is a copy of the affidavit in Question : — residence.
' The descrip.
tion most be
gubstantially contained within the affidavit itself. Snch affidavits need not be oon-
stmed witb strict grammatical accuracy. — [M^IkweU v. fFAeaf^ commented on
and distinguished.]
* Coram Ltmch, J.
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CHANCERY REPORTS.
Statement.
'* Frodarick Henry Lewis and 'WilUam Bobert
Lewis, of Belfiut, in the County of Antrim,
trading nnder the firm of F. & W.Lewii,
Plaintiffl;
Alexander Smith and John Boss, both of Bel-
&8t, in the Conner of Antrim, trading
under the firm of Smith & Boss,
Defendants;
And the 13 & 14 Vic, c. 29.
Frederick Henry Lewis, of
Belfast, in the county of
Antrim, merchant, aged
forty years and upwards,
one of the plaintiffs in this
cause, maketh oath and
saith, that he, this deponent, and one William Robert Lewis, of
Belfast aforesaid, by the name and description of Frederick William
Lewis and William Robert Lewis, of Belfast, in the county of
Antrim, merchants, did, on the 10th day of October 1856, and in
or as of Trinity Term 1856, obtain a judgment in Her Majesty's
Court of Common Pleas in Ireland, against the defedants in this
cause, by the names and description of Alexander Smith and John
Ross, both of Belfast, in the county of Antrim, builders, for the
sum of £169. 98., besides £7. 48. lid. costs, as by the records of said
Court may appear. This deponent further saith that, to the best
of his knowledge, information and belief, the said Alexander Smith
and John Ross, the defendants in this cause, were, at the time of
swearing this affidavit, seised or possessed of, or had disposing
power, which they might, with the assent of any other person, exer-
cise for their own benefit, over certain lands, tenements, heredita*
ments and premises hereinafter mentioned, that is to say (here follows
the description of the premises). Deponent saith that the sum of
£165. 66. 8d., for debt and costs, still remains justly due and
owing to this deponent, over and above all fair and just allowances,
and that said judgment is stiU in full force and effect at law, and
not vacated, satisfied, paid off or discharged.
'^ Frederick H. Lewis."
(Jurat in usual form.)
Argwmeni, Mr. Kernan^ for Messrs. Lewis.
Mr. Heron^ fbr the Northern Banking Company, cited Crosbie
V. Mu$p^ (a) ; McDowell v. WheaUy (b) ; In re Hams (c).
(a) 8 Ir. Com. Law Bep. 301. (6) 7 Ir. Com. Law Bep. 562.
(c) 10 Ir. Chan, Bep. 100.
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CHANCERY REPORTS. 399
Lynch, J. ' I860.
The discharge pat in in this case raises the question whether an >, .^'' ,/*
affidavit, filed in the caase of Lewi* and another ▼• Smith and Ross^ smith
to secure a judgment mortgage on the lands of the defendants, the ^"^ boss.
bankrupts, is sufficient ; or whether, bj reason of its deficiencies, in Judgment,
not complying with the requirements of the statute 13 & 14 Vie.j
c« 29, it is not null and void, as creating a charge on the lands
specified in said affidavit ? and this very serious question, when the
consequences of the decision are considered, is now necessarily before
me for adjudication.
Were this case before me without previous decisions existing,
perhaps I should have no great difficulty in dealing with it, but it
is not so circumstanced ; and cases have been cited to me as author*
ities binding this Court, on the point now raised. Croebie v.
Murphy (a) is the latest case cited ; but as to it, I find the real
point there was at a late stage of the proceedings, and was only col-
laterally raised, and was upon a defect different firom what is alleged
in this case ; therefore I have no duty cast upon me to consider that
decision. Another case, and the one principally relied oo, is the
case of McDowell v. WheaUy (6). That is the decision of the
Court of Common Pleas — a Court necessarily commanding the very
highest respect from every one who knows the members of the
Bench occupying that Court. It would be a presumption in me^
indeed, to set up my judgment as questioning theirs ; and I well
know that any opinion of mine, adverse to theirs, would and ought
to bear little authority in the legal world ; but still I sit with all the
responsibilities of a Judge, entrusted by the law with the adjudica*
tion of great and grave questions for the mercantile public, with
full jurisdiction to determine such cases ; subject, I am glad to feel,
as others are, to appeal, but of superior jurisdiction, in determining
the cases brought before me. Then I say, as to McDowell v.
TFheaifyy that it is not identical with this case before me. This is
an affidavit made in a suit, containing in its margin the names, the
titles, and the residences of the parties ; and the objections in this
case point more to one of the* plaintifis than to the defendants in the
(a) 8 Ir. Com. Law Bep. 301. C^) 7 Ir. Com. Law Bq>. 563.
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400
CHANCERY REPORTS.
1860. suit. There are grounds wherein this case is distinguished from
^^f^^*^/ McDowell V. Wh4atfy. I admit they are small grounds of dis-
8MITH tinction— ^I admit that they are little to be appreciated by the public
AiiD BOSS, outside of Courts of Justice — but (as I assume) they are distinctions
Judgment. BuflScient to relieve me from the necessity of further considering
that case ; and, consequently, I will content myself with adjudging
this case according to my conscience, and, as far as I am able,
according to the rules of law, not irrespective of common sense ;
for, as I said once before, no case has yet ruled that, in construing
these affidavits, I must lay aside all the promptings of common
sense. When Mr. Heron produces for me such a case, I will go
with him to the exposition of such affidavits, taking verbal techni-
cality and Lindley Murray as my sole guides. I may add, in pass-
ing, that since I have come to this Court, in almost every case
where a claim exists on a statutable judgment mortgage, in the
first instance it has been attempted to discharge it grammatically,
and pay it off by the rules of syntax ; as yet, these discharges have
not prevailed here. In my "experience at the Bar I have seen
Courts, both here and in England, seized, for a time, with a love of
toinute abstractions different from that used in ordinary life, and
decisions run in currents founded on such love. Whether a vowel
could be a Christian-name, and whether a consonant, being in-
capable of being sounded, could possibly be such, were questions
on which learned judgments were pronounced. I saw a very
learned Judge illustrating, as he thought, that a consonant could
be sounded ; but in that very case, when Chief Justice Black-
bume was fhmished with all the cases, and was told that 'the
authorities were all uniform that way, I heard him very wisely
declare that it was high time to have an authority on the other
side; and thereupon it passed quietly into forgotten learning. Other
classes of cases have gone on in like fashion upon technicalities that,
looked back upon, suprise us ; but love of minute accuracy becomes
infectious, and rules men's minds for a time, until some Judge,
impatient of subtlety tending to injustice, follows the course of the
distinguished Judge I have named, and turns back the decisions to
common sense.
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CHANCERY REPORTS. 401
Id my judgment, to construe this Act with the verbal technicality 1860.
now demanded at the Bar is to render the statute, instead of being ^^ -7'* » f '
, In re
a means whereby, at a small expense, a specific security might be smith
obtained, absolutely a trap for the ordinary public, being a means of ^'"^ "^o^.
depriving a man of his security^ if his attorney happens to be deti- Judgment.
cient in the rules of English grammar. He may haye honestly
intended a full compliance with all the requirements of the statute ;
and the affidavit may in itself show that such was the intention,
and everything required may be in it in fact ; but some part, by
grammatical blunder, when examined, may stand only in recital,
and not in averment— phrases, perhaps, utterly unintelligible to the
poor man, who thought he had, by the Act of Parliament, a security
for his debt ; but, there being an undoubted grammatical error, his
debt is lost, and he goes forth to the world a ruined man. Let me
not be misunderstood. I do not say that the requirements of the
statute need not be complied with ; the statute giving the security
points out the mode of obtaining it ; and it is only in the mode
pointed out that it can be obtained. A Judge cannot be wiser than
the law ; he must act under the law ; and, unless he sees the law
complied with, he cannot uphold the security. The law requires
that the affidavit shall contain certain specified things, amongst
them '* the names, and the usual or last known place of abode, and
the title, trade or profession ^ of the parties. All this, I admit,
must be in the affidavit itself; for so says the law« But here
my proposition begins: — How are we to look for the performance
of these requisites? Is it with a grammatical microscope to find
out flaws? Is it by construing the statute as saying that these
requirements must be contained in fitting terms, in moods and
tenses appropriate, in very words of accurate averment ? Or is
it, on the contrary, by expounding the law as applicable to the
learned and unlearned alike, and looking to'see if the affidavit was
plainly intended to contain all that was required, and by looking to
see if practically, no matter how unlearnedly, it is in it ; in a man-
ner, perhaps, not to be parsed by grammar rules, but yet giving:
to me (the Judge) materials wherefrom to say this information wa-s
intended? and, learning from itself this intention, I will read it as
VOL.11. 51
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402
CHANCERY REPORTS.
Judgment,
there, if I ean. I admit we must not look for aid oatside the
affidavit. The statements most be within it practically and sub-
stantially, not literally and grammatically ; so I will then read it
as there, and read it vi res magii valeai guam pereat: and,
speaking with the deepest respect for other tribunals, it would seem
to me a lamentable necessi^ which would compel me to leave men's
properties at stake while I was weighing grammatically the relative
pronouns in affidavits honestly made by them to secure those rights,
on the faith of a public statute. I see no great end of public justice
to be answered thereby, while I see individual calamity widely
diffused. Influenced by these principles thus announced by me,
I have taken up this affidavit, and I have examined it to see if
it has all the requirements of the statute. I find in it the names
of the parties, their title or trade, and their residences. A resi-
dence is given; why am I to suppose it changed? The names
arQ given ; am I to suppose the names are changed ? Or should
the affidavit goon to state that their names are still unchanged?
Admit once this class of criticism, and where can you stop ? It
will be almost impossible to frame an affidavit to meet the captious
criticism of ingenious minds ; and in fact, in the end, the learned
subtlety used to encounter verbal criticism will lead only to new
traps for flaws. Let these affidavits be read as by men of sense
and men of the world — a glance will generally show concealments
and studied phrases intended to withhold information. Take the
affidavit, and ask this question, would it convey to you the infor-
mation intended to be given by the statute, so as practically to act
on it ? and if it does, and if I can so read it, I will not waste my
brains on subtleties, or hide myself behind grammar rules, but I
Will expound the affiurs of the world by the rules acted on in
the world, by the learned as well as the unlearned; and I will
not strip a man of his property because he mistook the collocation
of his words, and mistook the proper particles to use in his sen-
tences. I might, I feel, have found analogy enough in some dases
to make my judgment but a yielding to authority ; but I feel I
would thereby shrink from a duty imposed upon me by my own
position; and I could not satisfy my conscience in depriving this
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CHANCERY REPORTS.
403
gentleman of his propertj on the gronnds pat forward before me.
If the Court of Appeal declare that I am mistaken in this course, I
will believe them right; and I sincerely hope they may have the
opportunity of correcting me, if wrong. I have not been able
to learn the particulars of the cases lately decided by them. I
believe that, at least, their judgment did not go in advance of the
cases cited here. A fourth point was made, viz., that Belfast is not
a sufBcient residence; and the case In re Hamt{a)^ decided by
my Brother Berwick, was cited. I entertain sincere respect for
his decision; but the case is totally different| on a diflbrent Act,
framed to answer a purpose entirely different. Here, Belfast was
sufficiently descriptive in the judgment, as designating the parties.
It is their trade residence-<-the orjlinaiy style to address them by in
the world ; and their trading title is not the same thing as that of a
person of the class such as was in Hami oomi and it would be
indeed to introduce a new element of abstruseness into these affida-
vits, if I was forced to inquire into the sijKe of the town and its
population, in order to defeat, by external aid, such affidavits.
This very point shows itself the absurd lengths to which techni-
cal objections to these affidavits may be pushed. Thus deciding
that this affidavit is sufficient, I must now adjudge as to the costs.
I have given the claimants an exemption irom the consequences of
their negligence ; and I have endeavoured to do them substantial
justice notwithstanding ; but, as their acts caused the expenses of
this argument, and these proceedings, I will make them pay, out of
the funds coming to them, the costs incurred by the Northern Bank.
(a) lOIr. Chan.Bep. 100.
1860.
Judgment,
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404 CHANCERY REPORTS.
1861.
Btmkicy., ^.
In re ROBERT DELAHOYD, an Arranging Trader.
Jan, 16.
On the drd of This case came before the Court on motion, that the bailifis in
D. filed a possession of the trader's goods under Ji, fa. might be removed,
insolyen^; <m I" *^® month of November 1860, several creditors of R. Delahoyd
Noyember F. ^^^ proceeding against him, and, in order to prevent an execution,
a^ cr^top^of Delahoyd signed and filed a declaration of insolvency, on the 3rd of
notice of the November, of which due notice was given to the creditors,
act of bank- ^
roptcy, seiaed On the 22nd of November, the Sheriff, under a writ of & fa.
the goods of "^ ''
R. D. under a issued at the suit of the Messrs F., creditors of Delahoyd, seized
Ji fa. On ^ ^
the 24th of hb goods in Queen-street. On the 24th of November, Delahoyd
Noyember, B.
D. presented presented a petition for arrangement, and obtained the usual pro-
arrangement, tection order, which was served forthwith on the execution creditors.
the iwu^pro- -A^"* ^^^ ^^® Sheriff's officers remained in possession.
tection oider.
"Held, the
^rjor pro- jdr. Sidney, for the execution creditor, cited Grace v. Bishop (a);
ted against £ewis v. Collard (b) ; Monk v. Sharp (c) ; Harrison v. Lawford (d) ;
the preyions
seiznre, so as Williams v. Drury {e). •
to preyent the
execution cre-
ditor proceed-
ing to a sale. Mr. Heron, for the arranging trader, cited Fluester v. M^Clen-
ru^'co^; ^^ (/J ; ^'V^^ AmMig).
junsdiction to
make an order
restraining the Lynch, J.
execation cre-
ditor finom Id this case an application is made to me to have the bailiff now
proceeding.
Remarks on ^^ possession of the trader debtor's premises in Queen-street with-
bothp^eshi ^*^°> ^^ *^® ground that his continuance in possession is in
delaying Uie
appUcation to the Court
The rights of the execution creditor, in such a case, will he protected (in the eyent
of the arrangement proying abortiye), by the lodgment of a sum of money in
Court, to meet his demand in that eyent.
(«) 11 Ex. 424. (6) 14 C. B. 209.
(S) 2 Ex., N. S., 240. (rf) 6 Jur., N. S., 28a
(e) 29 Law Jour., Q. B., 86. 09 6 Jur., N. S., 1876.
is) SDeG. &J.473,
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CHANCERY REPORTS. 405
contravention of the protection order of this Court, granted on the 1861.
24th of November last. Bankt^^.
It appears, apon the facts now before the Court, that, under the dsi^ahotd.
execntion, a seizure was made On the 22nd of November, two days
Judgment*
before the granting of the order for protection, and beft>re the peti-
tion and affidavit ; that the petition and affidavit made no mention
of the material fact of the seizure, and that the further order, that
the official assignee should be possessed, was made on the 24th of
November.
The facts being before the Court, the first question raised before
me is — quite irrespective of the manner in which these orders for
protection and possession were obtained — what is the legal effect
and operation of these orders? Had the execution creditor been
so advised, he might have moved this Court to set aside the order
for protection, as improvidently granted, or as obtained by suppres-
sion of the fact of his possession by seizure ; or he might, if he could,
have shown grounds why he should not be deprived of the benefit
of his diligence ; and this, coupled with the suppression I mention,
might afford grounds to vary the order made. However, by these
proceedings he would admit the validity of the order made, as afieet^
ing his rights, and they would have this injurious effect on his
rights, viz., that, by the very simplest proceedings, his priority could
have been levelled in any view of the law ; and it is material here
to remark that the proceedings to execution were taken with full
notice of an act of bankruptcy so long since as the 3rd of Novem-
ber last.
But the execution creditor, instead of adopting any course of the
kind I have suggested, preferred to question the legal opemttion of
the orders made by the Court, as contrdling "his" rights; «nd
further, to question the jurisdiction of this Court to deal with
the matter involved in this motion. I am, therefore, compelled in
this Court, first, to consider whether the order of protection made
here operates to prevent the execution creditor from proceeding to
realise the property already seized, by a sale; and secondly, whether
I have jurisdiction to deal with the matter of the motion.
Mr. Sidney^ on behalf of the execution creditor, has argued the
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406
CHANCERY REPORTS.
1861. case with great ability and great clearness; but still he failed to
In rt
Judgment.
give me any precise notion of his construction of the order for
DELAHOTD. protcction, or how he would define ** process,** so as to prevent a
seizure under execution, while it allowed all subsequent proceedings
to a sale. I fully concur with him, that process after the date of
the order b only within the protection ; but that proposition still
leave>9 unanswered the question — ^what is process ?
In the argument of this question, the general operation of the
arrangement sections of the statute have been largely discussed.
I have not the same feeling as Judge Macan sometimes expressed
respecting this part of the Bankrupt Code. I think, in proper cases,
and carefully administered, these provisions are capable of working
out most useful ends— giving to creditors, where no frauds or
unfair dealings exist, all the benefits to be arrived at in bankruptcy,
and sometimes greater benefits ; while the honest and unprosperous
trader is saved from many hardships consequent on bankruptcy. I,
therefore, for my own part, look on these provisions as highly bene-
ficial in many cases, and demanding at my hands, when I see the
case a proper one, a fair and anxious administration of its provisions.
In working out its provisions, and as much for the benefit of cre-
ditors as for the petitioning trader, the Court is empowered, in the
first instance, to make two orders ; first, an order for protection of
the trader and his goods from process ; and, secondly, an order that
the official assignee shall be possessed of the property of the trader.
These two orders seem to be intended to give the Court power
to protect the property, pending the time necessarily to elapse until
the creditors may pronounce their judgment on the arrangement
offered, as effectually as bankruptcy could do — at least to the extent
of preserving things in the state in which they were at the time of
pronouncing these orders. In efibct, when nothing has to be undone,
or nothing avoided, I think these provisions work out all the pro-
tection for property that could be efiected by an adjudication ; and,
in my opinion, this was the int^tion of the Act in this respect.
But though I go thus far into the consideration of the enactment
in these clauses, it is really only to see if any principle is to be
found in them necessarily to i)e regarded as construing the words
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CHANCERY REPORTS. 407
** protection from process ** so as to give them a limited and confined 1861.
Banhtcy*f SfC*
meaning, as here contended for. Now I find none snch ; but, on »— v -^
In re
the contrary, I think the spirit of the law is in accordance with the delahotd.
full meaning of the words, taken in their natural interpretation; j'ZIZii
and, in mj judgment, all the steps taken in the execution, the
seizure, and the sale, are, in the natural meaning of the word, com-
prehended in the term ** process.** Therefore, the question here beings
not whether the Court ought to make an order interfering with the
rights which an execution creditor has obtained bj his diligence,
but whether the Court haying made such an order consequently
prevents the further proceeding to a sale, I am bound, in sustain-
ment of these provisions of, the statute, to rule that this order
operates as a protection from the further proceedings to a sale'.
But it is said that this Court has no jurisdiction to interfere ; and
further, that the Court out of which the process issued is the
proper Court to apply to. Now this Court is enabled to give the
protection ; it pronounces the order, and, having authority to make
the order, it has authority to compel its enforcement. I, therefore,
will not further refer to the question of simple denial of this Court's
jurisdiction in the matter.
But is the Court out of which the process issues the proper
tribunal to apply to ? Now, if the proceeding inferred the setting
aside of any proceeding or order of the Court of Common Law,
of course this Court would not be the proper tribunal to apply to ;
but, while the application is merely to uphold the order of this
Court, and to control the operation of the Common Law process of
another Court, in conformity with the legislative provisionsy I
think this Court is the proper Court to apply to. The Court of
Common Law could not change my. order ; whereas I have jurisdic-
tion and authority to take all necessary steps which may be neces-
sary to make the operation of my order to be conformable to the
equities and the rights of the parties ; and, as far as the right of
appeal is afiected, I give a more substantial right of appeal, by
assuming the jurisdiction; for to my order there lies the fullest
and most solemn appeal the law has provided; and, in addition
thereto, the case is disposed of by me at greatly less expense to
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408 OHANCEBT REPORTS.
1861. the parties than if a motion bad to be instituted in another tribanal.
^..^^ZS^' \ therefore, think that I am bound to exercise this jurisdiction, and
DELAHOTD. ^^^ ^ woold be Wanting in duty to this Court if I sent it to another
Judfnad.
tribunal. The cases referred to were all properly brought before
other Courts ; for they questioned the acts done in those Courts, and
required those Courts to set aside proceedings there, 'and have
jK> reference to the exercise of a jurisdiction where no acts done
in the other Courts are questioned.
ly therefore, rule that the order of the 24th of November
operated as a protection from the process then in course of being
executed, and still continues as giving such protection. But cer-
tainly in this case there has been great laches, and some impropriety
of conduct on all sides. No motion on any side was instituted until
this on which I am now acting. The execution creditor did not
attempt to sell the goods ; and the trader did not seek to remove the
bailiff until bow ; and the action of the Court might be seriously
impeded by this^elay. I think.it was the duty of the execution creditor
to have, come to this Court, and be relieved, if he had grounds there-
for, from the operation of this order in stajring bis process, and then
I could have moulded the proceedings, by reason of the suppressed
fact of the execution being levied by seizure, as I thought consonant
with justice; but he did not do so ; and, without attempting ftirther
proceedings to enforce his execution, he merely continued the bailiff
in possession. On the other hand, the trader debtor having this pro-
-tectiOn> and finding the jurisdiction of this Court questioned, lies
by, and takes no steps for all that period to have the order made for
bis protection carried out. I therefore think that there was in this case
culpable delay on both sides ; and I will give no costs of this motion
io either party, nor make any order in respect of the money paid by
the trader during the time he held back from seeking the aid of the
Court. I think there was a material suppression from the Court of
the fact of the goods being seized in execution. This fact should
have been stated in the* affidavit. I cannot say whether or not it
was verbally stated in Court, and I have no memory whatsoever
about it ; but it is a fact that should have been formally brought
forward. In fact, the affidavit implies the fact not being as it was ;
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CHANCERY REPORTS. 409
and, had the execution creditor submitted the case to me in reason- 1861.
Banktcy., Sfc»
able time, in whatever rule I made I would have given him the costs ^ y^— '
In re
of the motion. I will not decide now, as the case is before me, by delahoyd.
whom they are to be paid; but the execution creditor preferred to ~
stand obstructively, and not actively, upon his rights, against the
jurisdiction of the Court ; and of course I cannot, in such circum-
stances, give him costs, or allow him for expenses paid under such
circumstances. But I will protect the execution creditor to the
extent which I think justice requires ; he had priority of execution,
and had the protection afforded by the custody of property suffi-
cient to answer his demand. I will not allow him to be deprived of
,this right, if the arrangement shall hereafter fall to the ground ; but
I will direct that a sum of £40 be lodged in Court on or before
a certain day, to abide the further order of this Court, in respect of
the rights of the execution creditor ; so that, if the arrangement pro-
ceedings become inoperative, he may stand in the same position as
if the order for protection was not pronounced ; and he will be at
liberty to attend the second sitting, and show cause against the con-
firmation of the offer, if he can do so on any grounds. His expenses,
up to the time of the pronouncing the order for protection, I think
he should have ; whether with his demand, or in full, I will decide
at the second meeting. But for the notice of the act of bankruptcy,
his Icuihes in not applying here, and his attempt to oust the jurisdic-
tion of this Court, I would require those expenses to be paid in full ;
but, at all events, I think it will be fair at least to add them to his
demand. My order then is, that the bailiffs be withdrawn, and that
the official assignee shall continue to be possessed of these goods, on
condition that the sum of £40 be lodged in Court to the credit of
this matter, to abide the further order of this Court, to be pro-
nounced at the second meeting for arrangement, and that each party
shall abide their costs of this motion.
VOL. 11. 52
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410 CHANCERY REPORTS.
1861.
BattJHcy,, fyc.
In re BARTHOLOMEW COURTNEY, a Bankrupt.*
Feb, 13 14.
Itisnotneces- In this case the bankrupt had been committed for unsatisfactory
saiy that the
warrant com- answering, relative to his property, on the 3rd of February. A
bankrupt for '^^'^^ o{ habeas corpus having issued, he was, on this day, brought up
Msw^ng^"^ pursuant to the writ. The facts of the case appear sufficiently from
th^'t^^fh ^^ues^ ^^^ several judgments — [For the judgment of Berwick, J., see note.]
tions were put
by the Judge,
or that such Mr. Z>. C Heron, with him Mr. Levy, for the bankrupt, cited
should have
been the fact. Ex parte Cassidy (a) ; Ex parte Lee (b) ; Walker^s case (c) ; Ex
The words
" by and before parte Blaehstone (d) ; Ex parte Fitzhenry {e) ; Ex parte Oliver (f) ;
commence- Miller v. Scare {g)\ In re Ward{h)\ Ex parte Ramsden{i);
dqK)sition, ^ ^« P^i"^ Ward (k) ; Ex parte Martin (/).
are sufficient.
In order to
discharge the Mr. Keman, in support of the committal, cited Ex parte
bankrupt, the
Court before Hickie (m) ; Ex parte Downing (it),
which he is
brought on
must*"be fSly M**- -^^^^i ^n rep^Jj cited Ex parte Bradbury (o); In re
S^^gf bl Lord{p) ; In re Nolan {q) ; Langhome's case(r).
low was wrong
in committing him.
The question to be decided in each case is, whether the answers of the bankrupt
are such as would satisfy the mind of a reasonable man.
(a) 2 Bose. 217. (6) 2 M. A Ayr, 217.
(c) 1GL&J.371. (<0 7B. «iC.674.
(e) MoL 35. (fj 1 Rom, 407.
(^)2W. BL 1149.
(A) 1 Bail Ct. Rep. 126; S. C, 10 Jnr. 433.
(0 1 Bail Ct. Rep. 133. (k) 6 M. & W. 642.
(/) 2 Bail Ct. Rep. 33. (m) 10 Ir. Eq. Rep. 432.
(!•) 8 Ir. Law Rep. 492. (o) 18 Jur. 189,
(p) 16 M. & W. 462. (^) 6 T. R. 119.
(r) 2 W. Bk 918.
* Coram Fitzoibald, J.» in the Queen's Bench Chamber.
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CHANCERY REPORTS. 411
FlTZOSEALD, J. 1861.
Batiktcy., A*c.
In thia case, in which a writ of habeas corpus had been issued on , ^
In re
a former day, an application has been made to me, on the return of courtney.
that writ, to discharge the bankrupt, Bartholomew Courtney, who jSJIZLs
has been committed under an order from the Court of Bankruptcy
and Insolyency, for unsatisfactory answering, on two several days,
before Judge Berwick in that Court.
An objection has been made, in the first instance, which, if well
founded, I should consider a substantial objection ; namely, that it
appears from the depositions in respect of which this committal has
been made, and which I am to consider as incorporated with the
warrant, that the questions, upon the answers to which the com-
mittal was founded, were not put by the Judge of the Bankrupt
Court ; and it has been argued that it is absolutely necessary that
they should have been so put. In support of this proposition the
case of Ex parte Cassidy (a) has been cited ; but, as I intimated in
the course of the argument, I do not consider that case as at all
ruling such a point ; and I should certainly require express author-
ity for holding such to be the law. I have been unable to find
any such authority, nor have I found in the text-books or in the
Act of Parliament any foundation for such a proposition. Such a
rule may have prevailed when commissions of bankruptcy were
carried into operation by officers whose duty was merely minis-
terial ; but now the Legislature has thought fit to alter that, and
the Judges of the Court of Bankruptcy are Judges of a Court of
Record, widi the fullest powers of sudi a Court ; and the objection
made is, that it does not appear that the Judge, with hSs own mouth,
put these questions to the bankrupt. However, I am relieved horn
any difficulty, for, on looking at the deposition itself, I find it com-
mences, ** Bartholomew Courtney, the bankrupt in this matter,
being sworn and examined, the day and year and at the place first
mentioned, ^ and before me;" and this is the language of the
Court itself, the depositions being signed by the Judge.
The greater number of the questions were, of course, put by
Counsel, as is absolutely necessary for the ends of justice, the Counsel
(a) 2 Rose, 217.
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412 CHANCERY REPORTS.
being conTorsant with, and the Judge ignorant of, the facts of the
case, and the Judge merely interposed where he thought it neces-
COURTNEY. SA^7 J ^°<^ ^ ^^^ the concluding question in these depositions,
~ ' covering the whole Of them in fact, is put by the Judge, "Have
you no other or fuller explanation to give of the loss of that £600,
between the 1st of October and the 7th of December, mentioned in
your special balance-sheet, than what you have already given ? "
This being the state of the depositions, I should be prepared to
hold that every question in them was put " by the Court," if such
a ruling were necessary ; but I do not hold it to be so. But it is
further contended that, this person being committed under section
388, for unsatisfactory answering, his answers, looking at the whole
deposition, are satisiactory, and that I should, therefore, discharge him.
It will be well to see what is exactly the question which I have
to determine here ; and it is conveniently laid down in the case
of Ex parte Legge (a). Coleridge, J., in page 170, says, ^* Without
going the length of saying that the Commissioner would have been
wrong in coming to a different conclusion, I think it sufficient that
I do not see that he was wrong in deciding as he did ; and I, there-
fore, think that this rule must be discharged."
The question is not whether, if I were originally hearing the
examination of this bankrupt, in the Court of Bankruptcy, I might
not have come to a different conclusion ; but whether I am now
satisfied that the Judge was wrong in coming to the conclusion he
has arrived at? The rule in the above case is substantially taken
from the language of the Lord Chancellor, in Ex parte Oliver (b).
Of course, if I was of opinion, in this case, that the answers of the
bankrupt were clearly satisfactory, it would be my duty to discharge
him. This has been frequently a matter of discussion, both in this
country and in England, from the time of Perrotfs ease to the
present time. When Perroti^s case was decided, the Commissioners
of Bankrupt were merely ministerial officers ; whereas now the Court
is a Court of Record in Law and in Equity, and the Judges of the
Court possess a jurisdiction even more extensive than that of any
other Court. At that time the Bankrupt Code was sanguinary and
(a) I Low. & M., B. C, 163. (6) 1 Rose, 413.
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CHANCERY REPORTS. 413 •
ferocious. Indeed I find, in a very interesting note to the report 1861.
of Perrotes ease, in Green an Bankrupt (2nd ed., p, 209), that he ^^^^^Z^'
was executed on a gallows, in Ludgate-hill, on the 11th of Novem- codrtnbt.
ber 1761, for "concealing his effects.^ When such was the ^"^ — ^
JudgmenU
character of the law, considerations and arguments might prevail,
which have no force now that the whole character of the Bank-
rupt law is altered, and the great powers of the Court of Bank-
ruptcy are exercised by the Queen's Judges,. not only with the
greatest humanity, but for the benefit and protection of bankrupt
traders.
There is an important case, not adverted to in the course of die
argument, £v jiarto Caulfield(a% in which the same arguments
were adduced as in Perroifs eaee, and in the present ; and, in giving
judgment. Burton, J., says : — *' Another case, Ex parte Nolan (6), is
much to the same effect. The plain principle by which to be
guided appears to be this : if a man fairly, and without equivoca-
tion, tells a matter of fact, whereby he proves himself guilty of
fraud, he is not, on that account, to be committed ; but if he makes
statements of such a nature that no reasonable man can believe
them, he ought then to be committed." Th^t is the true distinction
to take. If, for instance, in the present case, the bankrupt had .
admitted, with reference to the loss of the £600, that he had made
away with it ; this, though criminal, would not be a ground of com-
mittal, if he had answered truly. The case of Ex parte Nolan
is referred to by Burton, J., with approbation, particularly the lan-
guage of Lord Eenyon, in p. 120 ; ** The question, in each parti-
cular case, is, whether the answers given by the bankrupt be, or
be not, sufficient to satisfy the mind of any reasonable person ? **
Now, that being a case thus approved of, and acted upon, appears
to me to furnish a satisfactory rule as to the present case — a rule
which in practice I have known frequently acted upon; and the
case <tf Ex parte Miller (e) is the only one in which a contrary
rale seems to have prevailed. There, certainly, the bankrupt was
discharged, upon answering which would have appeared to me
(a) 5 It. Law Rep. 358. (6) 6 T. R. 1 18.
(c) 3 WiL 420.
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414
CHANCERY REPORTS.
1861.
In re
CODRTNET.
Judgment,
most unsatiflfactorj. Miller's ease is one which, I most say, I should
decline to act upon. However, I shall mention a ease which is not
in the Reports, but in which I myself was Counsel, before Penne-
father, C. J., in 1845, in which Miller's ease was approved of. In
that case {In re Stokes^ in the mailer of Filler a bankrtq}t)^ the
learned Judge acted on the case o( Ex parte Millers but I did not
at the time, nor do I now, think his judgment* a satisfactory one.
I shall only advert to one other authority, Ex parte Langhome (a). —
[The learned Judge here stated the facts of that case.] — There,
answering similar to the present was held unsatisfactory, and the
prisoner was remanded. Now, in considering this case, the question
is, does it appear to me, on the whole examination, that the answers
of the bankrupt were satisfieu^tory ? and, acting on the rule in Ex
parte Legge^ I must be satisfied that the Judge of the Bankrupt
Court was wrong. A very proper course was pursued in this caae ;
(a) 2 W. Bl. 919.
* The following MS. note of the case In re PUler (coram Pennefather, C. J..
in Chamber, 7th of February 1845) has been kindly supplied by the lUght Hon.
Mr. Justice Fitzgerald : —
J. D. Fitzgerald and Meagher applied for the discharge of the bankmpt,
who had been committed by Commissioner Macan, for not answering to his satis-
faction. The prisoner was brought up under a writ of habeas corpmi ; and the
Marshal returned the writ. A great manj objections were taken to the form of
the warrant ; but they were all oyerruled. It appeared, however, upon the war-
rant» that the questions put by the Commissioner in the commencement of Ae
examination were not set out. Then there was a statement that the Commiwioner
questioned the bankrupt, and then propounded the following question ; and the
examination proceeded, setting out question and answer ; and the warrant con-
cluded, ** which answer of the said B. K. Filler being unsatisfoctoxy," Ac, I
objected that all the questions should have been set out, as the conclusion referred
to the whole. ,
Creighton, contra.
Held, a fatal objection ; and the bankrupt was discharged.
I inclined to the opinion that the above objection was not tenable, bat thmt
several of the others were ; especially diat the bankrupt, being a Quaker, the war-
rant merely stated the examination to have been *' being duly affirmed ** — Eje
parte Beeton (2 Jur. 636)— and that the commitment was, " until he submit himself
to me ;" in place of *' to the Commissioners, or either of them,"* The caae was
argued at great length, and almost all the authorities dted ; but particularly, Ibr
the prisoner. Ex parte Vogel (2 B. & Aid. 224) ; Ex parte Isaac (M, & M'A.
27), and Foxley's ease (1 Salk. 351), to show that the statuuble power should be
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CHANCERY REPORTS. 415
when it appeared tbat there was a difBcuUy in accounting for 1861.
Btmlctcy., Src.
certain property of the bankrupt, he was called on^for a special — --v
' In re
balance-sheet, which is one of the best modes of testing the bona courtnet.
^fides of a bankrupt that can be adopted. In that balance-sheet the j^^j"^^,
bankrupt proceeds to account for this property ; and what he says
is substantially this : — On the 1st of October, I had stock to the
amount of £100 ; between that and the 5th of December I got about
£1400 worth of goods; and then, in aboat ten weeks, I sold about
£1100 worth, and lost on the sales £600 ; and he then attempts, in
other ways, to account for the residue, having, at the latter date,
£400 worth of goods on hands. Well, the loss of this £600 became
the subject of inquiry ; and the course taken with the bankrupt
appears to me to have been very proper. It has been called a cross-
examination. Be it so ; he had the advice and assistance of his own
Counsel during the entire of it. It was, no doubt, an adverse exam-
ination. His attention was called to the £600 ; the question was
put to him in every shape, and still it appears he could give no
other account of it than that he lost it on sales. But let us see
IS this explanation as to the £600 ^* satisfactory.'* He is asked to
strictly porsned ; and also, on the same point, Evans y. Reea (12 A, & E. 55) ;
lU Mather (2 Strange, 860 ; Comb. 391 ; & C, lUy. 861).
As to •* which answers," Ac, Hadland's ca$e (1 D., P. C, N. S., 835). That
only formal defects were cared by section 52 : Crowley*» case (2 Swan. 80) ; Cat^
My'$ ease (19 Vos. 326; S. C, 2 Rose, 217, 400) ; and Ex parte M" Gee (6 Madd.
206). The commitment was before inrrender ; and it was urged that the bankrupt
coold not be committed before the forty-second day ; and Rex y. Walters (5 C. and
P.) was dted ; bnt the objection was oyermled.
On the same daj, and in the. same matter (Ex parte /. X. Stokes), J. D*
Fitzgerald and Codd applied also for the discharge of Stokes, a witness committed
for unsatisfactory answers. Some of the answers appeared improbable ; bnt one
could not saj they were nntme. The only question argued was that, upon the
whole, the examination was not, to a reasonable mind, so unsatisfactory as to
warrant a committal.
The following cases, amongst others, were cited in support of the application : —
Ex parte OUver (2 V. & B. 244) ; Norrie* case (2 Jac. & W. 437) ; Jamts* case
(3 Dea. 518) ; MiUer's ease (3 Wils. 420).
Creighton, contra, cited Ex parte BardweU{\ M. & A. 193); Etc parte Caul-
JUldiS Ir. Law Rep. 359).
The Chief Justice discharged the prisoner, adopting the yiew of Eyre, J., in
Miller's ease.
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416 CHANCERY REPORTS.
1861. whom did he sell these goods; he is asked tb give the name and
v^-y / description of a single individaal to whom he sold ; as it is obvious,
coiTRTNET. ^ '^^ S^^^ ^^^ namos, inquiries could be made as to the truth of his
Judgment.
Statements. He is unable to do so. He is then asked to state the
quantities sold, and cannot state them. The questions are put in
every possible shape ; but his whole explanation amounts to this —
^'I got £1400 worth of my creditors' goods; I sold, within ten
weeks, what cost me £1100 for £500, losing thus £600; but I
cannot tell the quantities I sold, or the persons to whom I sold
them.'*
I was quite prepared to give my opinion upon this case yester-
day ; but, as it involved a question of personal liberty, I thought
it right, before giving judgment, to read over the whole of the
depositions. Having done so, and confining myself merely to this
sum of £600, my opinion is, that the explanation offered is most
unsatisfactory. I know not whether he has concealed it — ^whether
it has followed the other money to America, with a view to the
bankrupt himself following it there; but I cannot give credit to
his answers respecting it. I entirely concur with the course
adopted by the Judge of the Bankrupt Court. I think he has
well exercised his jurisdiction in committing this man. It is not
because it would be competent for the creditors of this bankrupt
to punish him in any other way, that I should not allow this
committal to stand. The imprisonment is not for life; for he
has only to come before the Judge at any time, and give a trae
account of this matter, and state the circumstances under which he
sold these goods at a sacrifice. If he does so, he will be entitled to
his discharge. As to the sum of £200, alleged to have been paid to
the bankrupt's brother, if it were necessary for me to form an opinion
I should come to a similar conclusion. Those accidental meetings
with the brother in Liverpool are all most unsatisfactory ; but it is
not necessary for me to found my judgment on that The Jndge
committed this man for unsatisfactory answering as to the £600 ;
for I find by question 301, put by the Court, after giving the bank-
rupt time to consider, the Judge asks him, '* Have you. no other or
fuller explanation to give me of the loss of that £600 ? " &c;
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CHANCERY REPORTS. 417
I am quite satisfied that the Judge was right in committing the 1861.
Banktcy., ^c.
iMmkrupt ; and the only order I can make is a remand. - — n^
Prisoner remanded accordingly.* coubtnet.
Judgment,
* The final examination of this bankropt bad been a^jonrned from the prerions p^h, 2.
day. He had carried on business as a prorision dealer at the BnUring, Drogheda.
He had stated, in his special balance-sheet, a loss of of £000 on the sale of goods
to the ralne of £1150, which he alleged had occorred between the Ist of October
and the 7th of December 1860. These goods consisted chiefiy of American bacon,
svpplied by sereral eminent men in that trade in layerpool and Dublin. He kept
no books ; and he was onable to Tonch his accoont of the loss by any document-
aiy eridenoe.
Mr. Kemmn, for the assignees.
Mr. Heron and Mr. Levy, for the bankrupt.
The ezamina^on of the bankrupt baring been brought to a dose on the pre-
vious day —
Mr. Keman applied that be should be committed for unsatisfactory answering. Feb, 3.
Mr. Heron, in reply.
Bkbwick, J«
In this case I am called on to perform one of those painful duties which some- Judgment.
times derolTe on Courts of Justice, by committing, tmder the 885th section of the
Bankruptcy Act, the bankrupt now before me, because he has not answered the
questions put to him fully, and to the satisfaction of the Court. I disclaim altoge-
ther the supposition that any committal under this section was for the purpose of
punishing peijuiy. There may be peijuiy committed before me, and sometimes,
I am sorry to saj, there is ; but I am only justified in making use of the powers
giTcn by that section, for the purpose of a discoverj for the benefit of creditors,
who tell me that there was property belonging to the bankrupt which had not
been accounted for, which the bankrupt had the power of accounting for, but
which he refused or evaded doing. If perjury were his only ofience, or if he
fraudulently removed property, or gave fraudulent preferences, the Act of Parlia*
ment, and the Criminal Law of the country, proride the proper punishments. The
section in question is only applicable where the Court thought that there might be
property made available for the benefit of the creditors, through the eridence of
the bankrupt The questions here are, whether the explanations which the bank-
rupt has given, first, as to the loss of £600, which, he stated, had taken place
between the 1st of October and the 7th q( December 1860, and, secondly, with
respect to an alleged payment made — as his schedule stated, in October, and as
his evidence stated, in November — to his brother, were such as, in the words of
one learned Judge, whose authority has been cited in argument, would '* satisfy
the mind vf any reasonable man," or, in the words of another, amounted *< to such
a story as a reasonable man would believe ? " The bankrupt's statement was, that
he had received in goods from different creditors, set forth in his schedule, to the
value of £1535. 12s. 2d. ; and that, deducting £4Ck) for goods still on bands, there
, remained about £1135 to be accounted for, of which he said he had lost £600.
Has he shown probable cause for having lost that sum between the dates specified
in the special balance-slicct, namely, the 1st of October and the 7th of December?
There are two authorities which, to some extent, guide me, as to the feeling of
TOL. 11. 53
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418 CHANCERY REPORTS.
1 86 1 . Conrtf with reipect to general statements of loss like that One was a t^ old
Banktcy., Sfc, anthority, the Ca»e of Thomas Langhorne, reported in Sir Wiiliam Blackatone'f
In re Bep., p. 91 9, vol. 2. It was a more exaggerated case than this, but still of the same
COURTNEY, description. The bankrupt stated before the Commissioner that he had lost
£1886, by selling goods under prime cost. That defidencj did not appear in his
Judgment, books ; and the reason he gave for its not so appearing was, that his brother was
his shopman, and he was afraid lest he might become acquainted with the nature
of his dealings, and hurt his credit by divulging them. The Commissioner decided
that that answering was not satisfactory; and his decision was upheld by a Supe-
rior Court. The other was Perrott'a case, in whicb-there were dealings to a large
amount, namely, £13,513, from the time of the bankrupt entering into trade to
the date of the bankruptcy. A deficiency of £3513 within that period appeared ;
and the bankrupt was aske4 to give a true account of how that money had been
disposed of. The answer was that, on goods sold during the last year, he had
lost upwards of £2000, and on mournings £1000; and that, for nine or ten yean
past, he had been extravagant, and had spent large sums of money. That
answering was decided by the Commissioner to be unsatisfactory. The case went
before Lord Mansfield, who likewise held that it was insufficient and nnsatis-
factory ; and the bankrupt was remanded. A sum of money was afterwards
found, which the man had secreted in a chair; and he was executed. In the pre-
sent case, the statement of the bankrupt that he had lost the money, not within
two or three years, but within the period to which he had confined it, and on
goods bought in during that time (not goods on hands), appears to be so mon-
strous that no reasonable man could possibly believe it; and there was this strange
fact, that the loss was incurred on goods charged not at retail, but at wholesale
price. The only suggestion that the bankrupt made, to account for this immense
loss, averaging £65 to £70 per cent, on the American bacon, and from £30 to
£35 per cent, on the other goods, was, that the goods were so bad — so deficient
in weight and in quantity, and contained so much waste, that he lost in conse-
quence. These goods were,not bought from new customers, but from wholesale
dealers, with whom the bankrupt had been dealing from the period he began
business in 1854 up to the present time; and there was no suggestion made by the
party himself that hci made the slightest complaint with respect to the quality of
those goods during the period that he alleged he had those losses. His schedule
began with the 1st of January 1860 ; and he put himself forward as having been
then comparatively a solvent man, because at that date he only alleged a defi-
ciency of assets to the amount of £112. 13s. 5d. Now he had been dealing
with those parties for upwards of five years; and, in reply to a question from me,
he said that no sum was due on that day to any one of the four persons who sap-
plied him with the American bacon, and to whom he attributed such an imm^iae
loss ; that is, he had been up to thai time, for five years, dealing with them in
this description of bacon, which, he now alleged, was so bad that he had lost
from £60 to £65 per cent, upon it ; and yet, instead of having a loss of thousands
upon that day, if his statement were true, he had no loss whatsoever, save the
deficiency of £112. More than that; he was then clear with them: and Uie
Court was asked to believe that, having known and expostulated with them for
years on the quality of the goods they were supplying, he then began a new accomit
, with them for the self same description of goods, and went on dealing with them
until he became a bankrupt. The statement in the schedule (before the special
balance-sheet was filed) was that he lost the £600 by being obliged, firom compe-
tition in trade, and the deterioration of the goods, to dispose of them under invoice
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price, within'the period from the Ist of Jannaiy to the filing of the schedule, thus 1 86 1 .
distribatmg the loss over a whole year. On that statement alone I certainly wonld Banktcy., jrc.
not haTel)een inclined to commit him. Jn the coarse of a year, comprising deal. j,, ^^
ings of the kind, a man who kept no books might have a geneml idea that he had cOUSTNET.
lost £600 ; and the fact might be so ; and yet he might be unable to give the
Court any farther explanation of it. But then he was called on to gire the special Judgment,
balance-sheet ; and in (hat document he limited the loss to the period between
October uid December ; and upon it the present questions have arisen. It should
be borne in mind that, from the 1st o/ Januaiy to the 1st of October, he had been,
according to his own account, getting the bad goods from those veiy same
parties, with, in some cases, expostulations, but nothing more. Yet the extraor-
dinaiy result of his schedule and balance-sheet was that, while he had no loss upon
the goods which he got, with complaints as to their quality, between Januaiy and
October, he. did lose £600 on goods receiyed, without making any complaints
about them, between October and December. Another fact in the case is, that
the bankrupt's father and cousins, or, at all erents, the latter, had dealt with those
veiy same alleged fraudulent suppliers of wholesale goods during the whole of the
time, and were dealing with them, he beliered, stilL The Court is asked by the
bankrupt to belieTe that, after he was tired complaining of those parties, he still
went on dealing with them, and made no complaints whatsoeyer in the matter.
Without saying that he was a person who properly understood book-keeping, still
his accounts and letters showed intelligence. He has produced one book for the
purpose of assisting the Court That book was full of mutilations ; perhaps his
explanation of those mutilations was sufficient ; I wonld not say it was not. He
said that he had allowed his children to tumble it about and tear it, and that he
himself used occasionally tear out a blank leaf, for the purpose of writing an
account. This book, however, told in a way opposite to that for wluch he
produced it ; for it showed the Court that the bankrupt did, on some occasions,
closely investigate the weight of goods supplied to him ; tlpt^he made an
accurate comparison between their real weights and the invoice weights, and
marked the result down, even to the pound. On referring to the prices given in
that book, at which the bankrupt sold during the two months, it does not bear
out the bankrupt's statement about the loss. The letters which had passed between
the bankrupt and Mr. P. Eehoe also weighed with tremendous weight against
the statements of the former. Mr. Eehoe was one of those who had been roundly
charged by the bankrupt with selling him goods which were contrary to sample,
and who, if the bankrupt's statement were true, might, within the last four years,
have had actions brought against him for losses sustained thereby; yet that had
not taken place ; nor was there any suggestion that the bankrupt sought to reduce
the amount of Mr. Eehoe's bills when they came in for payment. As to the let-
ters which passed between the bankrupt and Mr. Eehoe in the month of October,
being orders for goods, they contained no complaints as to losses through bad
quality or deterioration of goods ; nor any suggestion of an abatement of price on
that account. On the bankrupt's own evidence as to his sales, any person who
calculated from the figures he gave would find it impossible to believe that he lost
£(N)0 within a period of nine or ten weeks. Although the bankrupt's manner was,
in many respects, that of a man who wished to expose the true state of his affairs
as well as he could, yet I am obliged to come to the conclusion that his statement
was not borne out by evidence, and was in fact untrue. Then I come to a part of
the case which is full of mystery, namely, the bankrupt's dealings with his brother.
He stated that, six or seven years ago, he borrowed from his brother, for the pur*
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CHANCERY REPORTS.
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Bmnktey,, Sf^,
' '
In re
COUBTWET.
JudgmenL
poses of trade, a sum of £dOO. There was not a tittle of eridence to •nstain Uiat»
except his own statement. His brother has not appeared. The repayment of
that snm by the bankmpt to his brother i^pears to me to be one of the most
romantic stories that ever came into a Conrt of Justice. The bankrupt, knowing
that his brother was in Liyerpool in 1856 or 1857* went oyer there, and met him
in the docks by accident. The brother had been living there for some time ; but
the bankrupt never inquired for his lodgings* but went with him to a public-house,
and there paid him £200, for which he never got from him a scrap of writing ;
after which he came back to Dublin direcfly. The very same thing occurred in
N<fVember last, with respect to the repayment of the remainder of the debt, the
brother being then about to go to America I Was it not extraordinary that, at a
. time when the bankrupt was trying to keep on terms with his creditors, he should,
without any previous arrangement with his brother, or letter from him, saying
that he was going to America, and wanted the money, suddenly take it into his
head to go over to Liverpool, meet him by accident in an eating-house, and give
him the money there ? A receipt, signed by his brother, for the whole sum of
£390, had been produced; and there was this further piece of evidence, that the
brother stated that, if he should not set up in trade in New York himseU^ the
bankrupt should have the money back* There is veiy strong reason to suspect
that the money was put into the brother's hands for safe keeping, until this whole
matter should have blown over. I, therefore, feel obliged to put into the order
which I am about to make for the committal of the bankrupt, that he has answered
unsatis&ctorily with respect to both of the matters referred to, namely, the loss of
£600, and the payments to his brother. It has been urged* on behalf of the bank-
rupt, that, if he has answered to the best of his ability, such an order might
amount to perpetual imprisonment. I feel that very strongly ; but, if it should
press upon the bankrupt, the appeal must be made to the Legislature, not to the
Court I regret to say that that is the only answer I can give to that suggestion
on behalf of the bankrupt. If Mr. KenuaCg clients, or any gentleman engaged in
the case, have any reason to believe that the bankrupt had those dealings with his
brother, they would be bound to inform the Court of it.
Mr. Keman said the trade assignee had desired him to say that he knew
nothing at all of the dealings of the bankrupt's brother; but, if anything of the
sort turned up, it would be in the power of the Court to bring up the banknq>t !br
further examination.
The warrant for the committal of the prisoner was then made out.
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CHANCERY REPORTS. 421
1861.
In re FREDERICK SANDERSON.*
May 23,
F- SAira>EB80N carried on the trade of cab-builder in London, for a '^5 ^™® ^^*
' trader 8 " re-
considerable period previoas to November 1860, when he gave up siding or car-
rying on bnsi-
bnsiness there, and removed to Dublin, and carried on the same i^ess in Ire.
land " (8. 81)
trade at Dominick-street, in that city. ' means the time
of presenting
On the 17th of April 1 861, the trader being in London, a creditor's the petition.
petition was presented against him, to Mr. Commissioner Fonblanque, Court has ex-
and he was, on that day, adjudicated bankrupt, the act of bank- diction oreT
ruptcy being a declaration of insolvency, dated the 13th of April. Jhouch'he^owe
In the petition in England the bankrupt was described as " Frede- ^^l,^^^'
rick Sanderson, of Dominick-street, Dublin, Ireland, and of Totten- ^nglan^
' while he wai
ham-street, London." The ordinary statement of his trading for redding and
trading there,
six months previous to the petition, within the jurisdiction of Mr.
Commissioner Fonblanque's Court, was stated in the petition, and
the usual proof of trading was given.
On the 14th of May 1861, a creditor's petition was presented to
this Court against the bankrupt, and adjudication thereon, the act
of bankruptcy being non-payment after a trader debtor summons.
Cause was now shown by thB bankrupt and the English assignees,
against this adjudication in Ireland.
It appeared, from the evidence of the bankrupt, that he had
resided and carried on business in Tottenham-street, London, for
twelve months prior to November last ; that was his only residence
or place of business during that time. In November, he and his
family came to Dublin, and he opened business in Dominick-street,
and carried it on there until the English messenger took possession.
Since November last, bankrupt had been several times in London,
but did not carry on business there, except by the purchase of
goods. He stopped business in London, on the 18th or 19th of
November ; but his shop there remained open for the purpose of
being lei, he having an interest in the premises, and having a care-
* C9mmJjtHcA,J,
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CHANCERY REPORTS.
1861.
Banktcy»t ^e.
In re
taker in charge of them. At the time of the English adjudication,
there were debts due which had been contracted while the bank-
8ANDER80N. ^^V^ ^^ Carrying on business in London ; and thej remained still
due. He had given notice (bj advertisement and otherwise), and
bad personally told his creditors, that he intended coming to Dublin;
and thej knew he had done so.
Statement,
Mr. Heron appeared in support of the Irish adjudication.
Argument. The bankrupt not having carried on business in London for six
months immediately preceding his pietition, the English adjudication
cannot be sustained. He has carried on business here since Novem-
ber last, and has resided here. This Court, therefore, has exclusive
jurisdiction over the case : In re Rogers (a).
Judgment.
Mr. Kernan^ in support of the English adjudication.
The main point in this case is, whether the 3 1st section of the
Irish Act gives exclusive jurisdiction over this trader to the Irish
Court? Now the trader had traded in England, and contracted
debts there ; and the mere fact of his having come to Ireland makes
no difference. The act of bankruptcy was committed in England.
Section 31 was passed for the purpose of preventing persons who
were bona fide Irish merchants, but who went to England for the
purpose of buying goods, from being made bankrupts while there
for that purpose. The question is, to what pieriod are we to refer
the words *' residing," &c. ? Some words must be inserted to explain
the Act. Wd contend the Act must mean the residence of the
trader at the time of contracting the debt It cannot mean the
time of filing the petition, for, in that case, a petition could not be
filed against an absconding trader. — [Ltnch, J. A person who
absconds does so from his place of residence, but it does not cease
to be his '* place of residence."]
Mr. Heron, in reply.
Ltnch, J.
In this case I feel bound to disallow the cause shown against the
(a) 9 Lr. Chan. Bap. 150.
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CHANCERY REPORTS. 423
adjudication in this Conrt on 'the 15th inst. The question of 1861.
Sanktey., {fc.
domicile is always the first thing to be tried in the Court in which v— -v '
In re
the petition is presented ; and the law is quite clear that, if nis 8Aia>BB80N.
domicile be exclusively in Ireland, I have an exclusive jurisdiction r"T~ .
over him. I have no power to add any words to the statute. I
find it clear on the evidence, that this trader's case falls within the
words of section 31. As to the argument of Counsel for the
assignees in England, that we should interpret the Act as if it said
residing or carrying on business exclusively in Ireland '^ at the time
of oantracting the deht^** that would be to make a total change in
the Act, and the most extraordinary consequences would follow as
to the traders over whom this Court would have exclusive jurisdic-
tion ; for, in that case, if a trader, thirty years ago, contracted a debt
in Ireland, and went immediately afterwards to England, and traded
there ever since, I would, on account of the debt contracted in
Ireland, have exclusive jurisdiction to make him a bankrupt. It is
quite clear that, at the time this trader was brought before me, he
resided and carried on trade exclusively in Ireland. There is no
doubt on this point ; he did so bona fide. He had deliberately
removed his business and his family from London to Dublin, and he
had given all his creditors notice of this. I cannot help saying that
this case has been rendered very unsatisfactory by the manner in
which it was brought before the Court in London. The adjudica-
tion there was certainly obtained from a Court which was left in
complete ignorance of the real state of the facts. I now Jiold that the
English Court had no jurisdiction in this case to adjudicate the
trader bankrupt. That adjudication was obtained by a suppression
of the facts which, I must hold, were shown to the gentlemen who
sought, in the English Court, to make this trader a bankrupt ; and
jet I have an affidavit before me, sworn by the petitioning creditor
in England, stating that for six months previous to the petition this
trader carried on business in London. I think it a matter of duty
that this case should be brought before the English Court. I dis-
allow the cause shown ; the costs to be paid out of the estate, and
the usual warrant to issue to the messenger of this Court.
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424 CHANCERY REPORTS.
1859.
Ckanctry.
JOHN HOWARD JESSOP, SALLY FETHERSTON and
OCTAVIA GREGORY, Petitioners.
(In Chanecry.J
Dec. 6.
A testatrix, This case came before the Court on a cause petition, by war of
after many '^ > ^ ^
pecuniary and special case, presented under the 11th section of the Court of
some spednc
beqnests, pro- Chancery (Ireland) Regulation Act 1850, under the following cir-
ceeded, "The ^ \ / e»
remainder of cumstances : —
my property
I leave to mv Maria Fetherston made her will on the 14th of February 1851,
then, after a which, so far as material, was in the terms following : — ^* I give and
!?I Ip^^* bequeath to my brother Sir George Fetherston the £500, late
S^F^^and^a <5urrency, left to me by my father, on his estate; I also leave him
StrixS and *^® *"™ ^^^' ^ ^®*^® ^^ bequeath to my two nieces, Georgina
residuary lega. ^nd Caroline Fetherston, the sum of £1000 each, out of the funds,
tees of this my ' ' -
last will."— provided they are unmarried at my death; but should they be
Held, that the '^ "^ ^ ^
gift of the married, instead of £1000 each I only bequeath them £200 each.
remainder of
her property I leave and bequeath to my godson Johh Fetherston, and his
to S. F. was ^ . , . ^ , . , ,
not revoked, heirs and assigns, my estate and interest m my three houses in
appointment Rathowen, for ever ; I also leave him the sum of £50, and my
O. d. resi^ large gold watch, left to me by my brother John Fetherston. I
onW^K^^^' leave and bequeath to my two sisters, Catherine Jessop and Isabella
^^^"^hichT^ Godley, the sum of £30.** The will then gave a great number of
lapsed. small pecuniary legacies, which did not include any gift to Sally
Statement. Fetherston, and then proceeded as follows : — " To my sister Isabella
Godley I leave a further sum of £50, that she may dispose of as
she thinks proper. The remainder of my property I leave to my
sister Sally Fetherston. I give and bequeath my share of 9 Upper
Fitzwilliam-street, together with my proportion of furniture, wine,
&c., to my two sisters, Sally Fetherston and Octavia Gregory, their
executors, administrators and assigns, as tenants in common, in equal
shares. I leave my niece, Caroline Fetherston, my small gold
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CHANCERY REPORTS.
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OTHERS.
Statement.
watch, chain and seals. I leave Georgina mj thick gold chain and 1 859.
the hrooch the Dean of Kildare gave me ^ I further leave Georgina s.^-^ ^
jTm Te
£10 to huj some ornament in remembrance of one who loved her jbssop and
dearlj. To mj two nieces, Kitty and Elizabeth Jessop, I leave ipj
plate I maj have purchased myself. I appoint my two sisters,
Sally Fetherston and Octavia Gregory, my executrixes and resi-
duary legatees of this my last will and t^tament; should they
require assistance, I appoint my nephew John Jessop as executor,
with a further sum of £60.''
Miss Fetherston died on the 27th of February 1851, and her
will was proved by Mr. Jessop. Several of the legatees named in
the will having died in the lifetime of the testatrix, their legacies,
amounting to about £630, lapsed, and the testatrix died possessed
of property considerably more than was required for the payment
of her debts and legacies.
The petition in this matter was filed to obtain the opinion of the
Court, whether Sally Fetherston was alone entitled to that part of
the r^iduary estate of the testatrix which ^was not composed of, and
did not include, lapsed legacies, or whether Sally Fetherston and
Octavia Gregory were jointly entitled thereto ? It appeared that,
at the time of making the will, Sally Fetherston lived with the
testatrix.
Dr. Radelijffe, with him Mr. Feiherstany for Miss Fetherston.
The general rule of Law, that, if there be two inconsistent gifts
in a will, the last shall prevail, must be admitted ; but if the two
gifts can be reconciled, if it does not appear that they can only
refer to the identical same property, they shall both be upheld :
2 Wms.' Exort^ p. 980. The rule in favour of preferring the
latter of two dispositions is applied only after the failure of every
endeavour to give such a reasonable construction to the entire
dispositions as will . render every part of them operative : Ship-
pardson v. Tower (a). The first gift is a clear and unequivocal
expression of the intention to benefit Sally Fetherston ; the other
side must show the intention to revoke it ; that onui is clearly
(a) 1 Y. & C, C. C, 459.
Argument*
VOL. 11.
54
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CHANCERY REPORTS.
1859.
Chancery.
In re
Argument.
cast upon them : Randfield y. Randfield (a) ; Morrall v. Sut-
ton {b). Windus y. Windus {c) shows how limited a constniction
JESSOP 'and 18 to be put on the words " I appoint A residuary legatee." Reli-
OTHERs. jince will be placed on Hardwicke y. Douglas (d) ; it is, however,
a very different case, both as turning on a codicil, and as to the
peculiar form of words used : the same is the case with respect
to Ulrich y. LichfiSld(e). The second residuary clause may be
fully satisfied by treating it as a gift of lapsed legacies : Sherratt v.
Bentley (f) ; Co. Litt.^ p. 112ft; Knaresborough v. Fitzpatrick {g) ;
Mitford V. Wichen {h) ; Acheson v. Fair (•) ; Maddison v. Chap-
man {h) ; Browne^ 8 Trusts (/) ; Cooper v. Cooper (m) ; Langkam
V. Sanford{n); Briggs v. Penny {p).
Dec. 20.
Judgment,
Mr. R. R. Warren and Mr. C. Toddy contra.
The rule is quite clear, that the last of two inconsistent bequests
must prevail: Ulrich v. Lichfield; Co. Litt, p. 112ft. There
is no possibility of giving concurrent effect to these two ; Spoonef's
Trusts (p) ; Blachford v. Long (q) ; Hardwicke v. Douglas,
The Lord Chancellor.
The petition in this case was filed for the purpose of obtaining
the opinion of the Court upon the construction of the will of the
^ late Maria Fetherston, with respect to a very short point arising
upon two brief clauses in the will of that lady, which bears date
the 14th of April 1851. It commences "I, Maria Fetherston, do
make this my last will and testament ; " then, afler certain legacies,
including £100 to her sister Octavia, there follows the first of the
(a) 4 Drew, 147 ; S. C, on appeal, 2 De G. & J. 57,
(6) 1 Phfl. 538. (c) 21 BeaY.373.
(d) 7 C. & F. 7»5. . («) 2 Aik. 878.
CfJ 2 M. &K. 149. (g) 18 It. Eq. Eep. 88a
(A) 2 Ken., pt 2, 61. (t) 3 Dm. ^ W. 123.
(A) 4 K. & J. 709; S. C, on appeal, 5 Jnr., N. S., 277.
(0 1 K. & J. 529. (fn) Ibid, 665.
in) 19 Ve«. 640. (o) 7 De G. & M. 525.
Q>) 2 Sim., N. S., 129. (^) 7 Ir. Chan. Rep, 87.
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CHANCERY REPORTS.
427
1859.
Chancery.
In re
elauses upon which the difficulty has arisen, " the remalDder of my
property I leave to my sister Sally Fetherston." Sally Fetherston
resided in the house with the testatrix. Her sister Octavia, or jessof and
Mrs. Gregory, had been previously married, and then lived in her othees.
own house; £100 only was, in the first instance, given to Mrs. Judgment,
Gregory, as a legacy, and the residue was then given, in very
olear and distinct terms, to Sally Fetherston, who, under the cir-
cumstances, may have been supposed to have been the main and^
peculiar object of the bounty of the testatrix. Upon these words
no doubt could exist that Miss Fetherston would have taken the
entire property of her sister, which had not been otherwise be-
queathed. However the will did not stop there, but proceeded to
give some specific legacies, and then went on as follows: — "I
appoint my two sisters, Sally Fetherston and Octavia Gregory,
my executrixes and residuary legatees of this my last will ; and, ,
should they require assistance, I appoint my nephew John Jessop
as executor." The question which arises is, what is the effect of
that last direction or appointment of two residuary legatees ? Some
of the legacies have lapsed, and with respect to them no question
arises ; it is conceded that these have fallen in for the benefit of the
two residuary legatees; and the only question is, whether, under
these words, the two are entitled to the general residuary property,
or whether it is still covered by the former bequest of all the
remainder to Sally Fetherston?
Now it must be remembered that all these directions are con-
tained in a very short instrument, which, from the time when she
b^ns by emphatically declaring it to be her last will, does not
contain the least indication of intention to vary, by subsequent
provisions, any of the arrangements made by it. It is, in fact,
one will without any apparent intention to revoke or alter any
part of it by any other. The presumption certainly is, that she
would naturally have preferred the sister who lived with her ; and
as there is, in the first portion, a clear gifl of all the property to
Sally, it will be necessary to show that other words as clear have
been used to displace that provision.
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428
CHANCERY REPORTS.
1859.
Chancery.
In re
JESSOF AND
OTHEBS.
Judgment,
Reliance was placed on the case of Spoanef^t TrusU (a), as
showing that an appointment of a residaarj legatee woold carry the
whole residue of the property ; and admittedly it has the effect which
in Easum y. Appleford (6) is attributed to a residuary clause, that
it passes a lapsed legacy ; but there is nothing in Spooner^s Trusti
which governs the present case, the precise question in which seems
now for the first time to have arisen. Uirieh y. Lichfield (c)
was much pressed on behalf of Mrs. Gregory. That case was
described by Lord Brougham, in Sherratt v. Bentley (d), as a case
reported in a very slovenly way ; but it is also reported in 2 PwrUm
Cooper^ tempore Cott^ p. 631, under the name of Francis v.
Ditchfieldj where it is stated from the Jodrel M.SS^ and in sab-
stance to the same effect as in the report in Aikin, In that case
the testatrix was seised of real and possessed of personal pro-
perty ; and by her will she devised all her real and personal estates
to the two plaintiffs for life, as tenants in common, ** one moiety of
the rents and profits to be received by the one, the other moiety by
the other: and in case of the death of Elizabeth Francis, the whole
to Jacob Woolrich, and the heirs of his body, with remainders over."
Then she gives some pecuniary legacies, which she charges *'on
the real estate before devised, in case her personal estate shall not
be sufficient to pay them ; " and goes on then, " All the rest and
residue of my personal estate I give to the three daughters (defend-
ants) of my uncle Leonard Coliard : " and she made Susan Ditch-
field executrix.
The great question which arose in that case, and which has sub-
sequently become the subject of discussion in many other cases, was
whether parol evidence was receivable, on the construction of the
document. It was, however, rejected; and Lord Hardwicke then
entered upon a discussion of the intention to be gathered from the
will, and came to the conclusion that the plaintiffs took no part of
the personal estate. That certainly was a very strong case, and
was naturally relied on as an authority for Mrs. Gregory. It was,
however, decided by Lord Hardwicke, on the ground of the apparent
(a) 2 Sim, N. S., 132.
(c) 2 Atk. 372.
(6) 5 Bl & C. 61.
(<0 2 M. 4» K. 162.
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CHANCERY REPORTS.
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1860.
Chancery,
In re
Judgment.
intentioii, to effect a total alteration of the earlier deyise ; for ^he
says : — ** First ; it is plain that the testatrix did not design the first
bequest to take effect in totOj for every legacy given after is an jessop and
alteration of itjwo tanio; and she had it in contemplation that her others.
personal estate might not be sufficient to satisfy those legacies ; and,
if so, it is plain that she designed this as a revocation in toto; for
there might be a necessity to charge them even on the real estate."
Thus he collects from the will itself an intention to revoke the first
bequest : and though one may not very clearly appreciate, or com-
pletely agree with, the view taken by the Court, still it is plain that
the words of the last clause were fully as clear as those of the first.
The case is very different from the present. The second gift is,
" all the rest and residue of my personal estate to the three daugh-
ters of my uncle Leonard CoUard.'' Language could not be clearer ;
and thus there was a manifest conflict between the two bequests.
The question which has always arisen in this class of cases is,
whether it must be taken that a revocation was meant, or whether
any reasonable construction can be given, which will make the two
conflicting clauses consistent ? and, if any such construction can be
given, so as to allow both parties to take, giving some interest to
each, that construction must be adopted. Of this rule there are
several examples ; but here it is very difficult to act upon it ; for
Sally Fetherston would take the whole residue under the first
clause, and one-half the residue unden the second.
It is equally improbable that the testatrix intended to revoke the
benefits which she had conferred on Sally Fetherston. She had
given her, in the first instance, all her property, and had then taken
out of that several unimportant matters ; and then she constitutes
her two sisters residuary legatees. It does not seem very probable
that, at the end of a very few lines, she should so totally have
changed her intention, and have given only one-half of the fund,
which she had before given entirely to Sally Fetherston, and that
diminishing it by the amount of the legacies. To bring me to that
improbable conclusion there must, according to the well-established
rules I have alluded to, be a second bequest irreconcilably inconsist-
ent with the first ; and it must be equally dear and precise.
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43a
CHANCERY REPORTS.
1859.
Chancery,
In re
Judgment.
Here then we have the second gift in the form of an appoint-
ment of residuary legatees. Now these words are very flexible ;
jessoVand *'^®y hsLve been considered in the cases of Windus v. Windu$(a\
OTHERS. Langley v. Thomai{h\ and Day v. Davoren{c). In the last
of those cases it was held that the appointment of persons to be
residuary legatees did not give them a right to the persimal
property of the testator. With these decisions, illustrating the
flexibility of these words, is it reasonable to give them the eflect
of revoking the strong and clear words in which the gifl to Sally
Fetherston is couched ? There is a very strong case in support of
the proposition that the first bequest was not revoked, reported
in the notes taken by Lord Kenyon, though not published until
long after the death of the Judge by whom it was decided — Mit^
ford V. Wicker (d). In that case there had been a bequest of
the testator's whole fortune, to be divided between the second
son of his brotlier, the defendant, and the second son of his sister,
S. Mitford ; in case of no such second sons, be gave one moiety
of the testator's fortune to the eldest son of bis sbter, in case he
should be living at the time of his death, and the other half to
his brother, the defendant; then, after several other legacies, he
concluded with a residuary bequest to his brother, the defendant,
whom he made executor. The precise terms of that bequest are
not given, and it does not appear whether it was a clear express
gift of the residue, or a mere appointment of a residuary legatee.
The question there was, whether the subsequent residuary bequest
displaced the prior gift of his whole fortune to the other persons ?
The case was much argued, and Counsel insisted that the whole
fortune having been given in the first instance, there was nothing
left for the residuary bequest to operate on, and that it was only
intended to provide for lapsed legacies to operate on ; but the Court
held, that the words ** whole fortune " left something still undisposed
of, which might pass under the residuary clause, and accordingly
held, that only that which was not disposed of by the first gift did
pass under the general residuary bequest. There was another case
(a) 21 Beav. 373.
(c) 12 Sim. 200.
(6)6D., M. &Qor.45.
(<0 2 Ken., pt. 2, 61.
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CHANCERY EEPORTS. 431
referred to, Hardwicke v. Douglas (a)j which arose not on a will, 1859-
ChttMcery*
hut on a codicil, and is, therefore, open to a much more prohahle "^^ — v^^-^
In re
constraction in favour of the later disposition than if it were in a jessop and
will, especially a will spoken of emphaticallj, like the {(resent, as the others.
last will of the testator. In that case the House of Lords held Judgment.
that the expressions used in the codicil did show an intention to
give the entire residue. The language of Lord Cottenham in that
case is verj important, when he speaks of the practice in cases
like this: — '*It fluently happens that there is found such a
residuary clause, and that, for greater caution, and to avoid the
possihility of not having included some things, you find words
which, though not altogether of a general residuary kind, are not
intended to apply to an antecedent gift.^ In Hardwieke v. Douglas
the indication of intention to revoke the prior bequest was held to
be sufficient ; but in this case the second residuary clause seems to
have been introduced for some purpose such as that suggested by
Lord Cottenham; and, looking to the whole will, I find a clear
residuary bequest in favour of Sally Fetherston at first, and a few
lines subsequently I find this second bequest, couched in terms of
great fiexibility. Nothing is suggested as likely to have caused an
alteration in the intention of the testatrix. There is no indication
of any change of feeling towards Miss Fetherston; and I cannot
decide that the somewhat ambiguous expressions at the end are
sufficient to take away the efiect of the first clear residuary bequest.
(a) 7 CL & Fin. 705.
General Hearing Booh^ 25, /. 301.
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432
CHANCERY REPORTS.
1860.
Chancery,
Jvne 16.
C. haying been
fonnd lunatic,
by inquisition,
obtained leaye
to trayene.
The Lord
Chancellor
directed one of
the Masters of
the Coort to
act as commit-
tee, and to op-
pose the tra-
yerse, which
he did by the
General Solici-
tor for Minors
and Lunatics.
The trayerse
was sncoessfiiL
—Held, that
C. was not en-
titled to haye
the receiyer
discharged,
without piD-
yiding for the
costs of the
General Solici-
tor for Minors
and Lunatics,
incurred in his
Staiement.
ArgummU^
In re CROSBIE.
This case came before the Court upon an application by Mr.
Crosbie, against ivhom a commission of lunacy had been issued, to
have the receiver appointed in the lunacy matter discharged from
his property. In the first instance a verdict of lunacy had been
found against Mr. Crosbie ; he, however, obtained leave to traverse
this finding ; and there being some difficulty about providing for the
future conduct of the proceedings, the Lord Chancbllob had
directed Acheson Lyle, Esq., one of the Masters of the Court, to be
committee, had directed him to oppose the traverse, and had ordered
certain costs, including the costs of opposing the traverse, to be
paid out of the lunatic's estate, to the General Solicitor for Minors
and Lunatics, who acted for Mr. Lyle in this matter. On the
traverse the jury returned a verdict establishing Mr. Crosbie's
sanity ; and the present application for the discharge of the receiver
was opposed by the General Solicitor for Minors and Lunatics, who
claimed a right to have the receiver continued until the amount
payable to him under the different orders of the Court had been
satisfied.
Mr. SuUivan^ Mr. Thofna$ Harris and Mr. Dowse, for the
petition.
After the success of the traverse the Court has no jurisdiction
over the property. The traverser is entitled to be let back into
possession of his property. The utmost extent to which the 6 (?. 4
can be carried is, that acts done by the order of the Courts previous
to the success of the traverse, shall not be undone, and that money
paid under such orders shall not be recovered back ; but the Court
has no further jurisdiction to deal with the traverser's property:
Lovedai^i ease (a) ; In re Cumming (b),
(«) I D., M. 4 O. 960. (6) Ibid, 537.
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CHANCERY REPORTS.
433
Mr. R. Armstrong^ Mr. Joshua Clarke and Mr. Graydon^ contra.
The Court has jurisdiction to carry out orders previously made ;
nothing farther is to be done ; no new liability can be imposed on
the estate ; but the mere success of the traverse is not to render the
previous orders ineffectual, and to impose on the officers of the
Court serious responsibility for obeying the orders of the Court.
ArgumerU.
The Load Chancellor.
The question raised in this case is one of very general bearing, Judgment,
and I can hardly say that my mind is quite made up upon it $ but
as it now appears to me, I do not think that the present application
can be maintained, to the full extent sought by it ; for I think that I
should introduce an erroneous principle in the administration of the
estates of lunatics, and that much confusion would be caused, if I
were to hold that I had not the power of continuing the receiver,
80 far as necessary to fulfil the orders previbusly made in the
matter.
The substantial question here is, whether orders made in this
matter for the payment of money, and which, for the purpose of
payment, only awaited the coming into Court of funds to the credit
of the matter, are to be forthwith frustrated, on the success of a
traverse to the inquisition ? So far as Loveday's case (a) decides,
that after a successful traverse no further orders for the payment of
money are to be made, I quite concur in it ; but the question here
respects the application of the funds in fulfilment of orders already
made.
It is true that, with respect to the costs, they have not yet been
taxed, and their taxation will be' necessary ; but the order for pay-
ment of them has already substantially beeh made, and the taxation
will take place in pursuance of that order ; so that the liability has
been fastened on the fund, and it is only the amount which remains
to be ascertained. With respect to the balance payable to Dr.
Gregory, I think the same principles applicable to it.
It must be observed that there is a difference between the
English and the Irish practice with regard to the estates of lunatics.
(a) 1 D^ M. & G. 280.
VOL. 11.
55
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434
CHANCERY REPORTS.
1860.
Chancenf*
In re
CSOSBIE.
Judgment.
In this coantrj there is not any separate grant made of the estates
of lunatics, as there is in England, by the Lord Chancellor. We have,
however, here that which is tantamount to such a grant, the
appointment of a receiver over the lunatic's estate, to receive its
produce, to protect it from injury, and to discharge its liabilities.
Now there are certain expenses incidental to this appointment, and
which necessarily flow from it, and there must be some provision
for repayment to the Court and its officers of the expenses thus
incurred ; for instance the receiver's fees, the costs of passing his
account and of his appointment, and other matters incidental to his
position. I am now talking of matters apart from the 6 Cr. 4, c 63 ;
but when we come to consider the terms of that Act, it is very diffi-
cult to say that the mere success of a traverse would, by itself,
nullify all the orders, and displace everything which had been done^
so that, though any person whose claim had been actually paid
would be undoubtedly entitled to retain the amount, all orders
which had not actually been paid should, in effect, be discharged,
and the sums directed by them to be paid should be lost. Of
course, I now speak only of costs incurred by the direction and
under the orders of the Court itself. I do not speak of costs in-
curred by other persons, on their own responsibility; but where the
Court has directed anything to be done, it seems to me to have
acquired certain powers during the pendency of the matter, and
even ailier the success of the traverse, to retain the power of acting
on the orders theretofore made.
Here there is an order charging the estate of the lunatic with
certain sums of money, which the Court, under the Act of Parlia-
ment, had full power to make, at the time when they were made.
A charge was thus created by the Court, when in possession of the
estate, under the operation of the statute ; and it seems to me a
very serious thing to say, looking to the provisions of the 6 G. 4,
c. 53i that though the Court has power to charge the estate with
expenditure incurred, or to be incurred under its orders, yet that
such charge is to fall to the ground immediately on a traverse being
successful. By that statute it is enacted that the Court may, not-
withstanding any petition or order which may be depending relative
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CHANCERY REPORTS.
435
to a traverse of an inqoiaitioD, make '\8uch orders relative to the 1860.
custody and commitment of the person or persons, and the custody, ^ ^— J»
management and appliciation of the estates and effects of any person crosbib.
or persons who shall or may hare been found lunatic^ idiot or of _ ";
unsound mind, by any such inquisition or inquisitions, as he or
they shall think necessary or proper ; ** and these words are not
followed by anything to say that they are to become ineffectual
immediately on the success of a traverse. All that is necessary to
found the power of the Court is, that the party should have been
found lunatic by inquisition. If that be so, the Court has jurisdic-
tion, up to the very moment of the success of the traverse, to make
all such orders as it shall deem necessary and proper ; so that the
Court has only to see that there is a person found to be a lunatic,
and that there is an application of his estate for purposes necessary
and proper ; and the Court, seeing that, has power to charge the
estate for such purposes, notwithstanding the pendency of a
traverse.
It appears to me that it would be a very strong thing indeed to
take the fund from the receiver, and to discharge him without
making any provision for the payment of the costs incurred by the
orders of the Court. Laveday's case (a) is quite different from the
present. The Court was not there possessed of any fund, inasmuch
as there had been no grant made to the committee, and the costs
had not been incurred by the express direction of the Court, as they
have been here. In re Cumming (b) is an authority for the right of
the Court to retain the receiver, for the Court there declined to stay
the order for executing the grant, and appointing committees of the
estate pending the traverse, and they made the order for the appoint-
ment plainly with the intention that the expense should be defrayed .
in some way, and not that^ the estate should be given back dis-
charged from the expenses incurred by order of the Court That'
case came before Lord St. Leonards and the Lords Justices, on a
petition by Mrs. Cumming for leave to traverse the inquisition, and
that, in the meantime, all proceedings should be stayed. The Court
declared Mrs. Cumming entitled to traverse the commission, but,
(a) I De G., M*N, & G. 280. (6) 1 De G., M'N. & G. 537.
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436
CHANCERY REPORTS.
Judgment.
notwithstanding that, made the order given in 1 De G., M^N. Sf (?^
p. 563 ; thej made the grant of the estate, and gave her the foil
income of it, without keeping anj in the hands of the Court ; plainly
implying that they had full power to do so. That is the only case
which I can find upon the subject, save Lorsedatfa ease i and what
I shall do is, direct the receiver to pass an account, and remove
him from the half-pay and the lands of the petitioner, but not from
the residue of hia property.
Order.
1861.
Jan. 12.
It is ordered that the receiver do proceed to pass an account ;
and it is further ordered that he be, and he is, hereby dis-
charged from over the half-pay and the lands of the said
petitioner, on the terms of the said petitioner appearing
before a clergyman and giving a certificate of existence,
as required for the purpose of the receiver's obtaining pay-
ment of the Government annuity ; and contingently on the*
Court being of opinion that it has jurisdiction to order
payment thereof, his Lordship is pleased to declare the said
T. H. and the General Solicitor for Minors and Lunatics
entitled to the sum of £5 each, as and for their costs of
appearing on the motion of the 9th of June I860 ; and a
like sum of £5 each, as and for their costs of appearing on
the motion of this day ; and it is further ordered, that the
General Solicitor for Minors and Lunatics, as solicitor for
the committee, do proceed to tax his costs between soli-
citor and his client in this matter. Let the receiver have
his costs of the motion.
Clerk qf Cuttodiee Booky 1 1,/. 382.
On this day the application for^ the discharge of the receiver was
renewed, the petitioner having undertaken to pay the costs of the
General Receiver for Minors and Lunatics; and an order was made,
on consent, to discharge the receiver ; he to pay the balance in his
hands to the Solicitor for Minors and Lunatics, on account of his
costs as solicitor for A. Lyle, Esq., the committee of the estate
of petitioner.
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CHANCERY REPORTS. 437
1860.
RoUs.
' FITZGERALD v. O'CONNELL.
(In the Rolls.) -Jg^g J-
Jaft.21.
Makoaret White, by her wUl, bearing date the 22nd of Novem- A testatrix
, -oi^ji--i 1 .. /. devised several
oer 1814, aevused several annuities to chanties m the city of annuities.
Limerick, and other annuities to individuals. Some of the annuities rected only to
were to continue for ever, and others of them were devised for a ^a diar^*^
specified number of years ; and she directed that the several an- ^J^ Jf^^
nuities were only to be a lien upon, and charged and chargeable on, Jj^^'iT®*^ j
her yearly income by lands and tenements, real, freehold and chattel chattel real,but
not upon any
real, but not upon any other personal estate in money, securities for other personal
estate; and she
money, or other personal effects and property; and that if her yearly directed that if
the yearly in-
income, by lands and tenements, real, freehold and chattel real, come of her
should fall short of paying the several annuities, &c^ the deficiency fnu g^ort of
should equally and proportionably be upon all such annuities or yearly ^^§es, \he
sums, each to receive according to the magnitude of such annuity, ^Sdequally
and in proportion thereto ; but no such deficiency to be vested upon ?^^-fi"^^'
her personal estate in money, securities or effects. After giving some ^V^^. f^ *^
•" » o annuities, each
further legacies, the testatrix devised and bequeathed the rest, to receive
according to
residue and remainder of her property, real, freehold and personal, the magnitude
of such an-
and of every other kind and nature whatsoever, which she had pre- nuity, and in.
proportion
viously vested in her trustees, after satisfying and discharging said thereto ; but
several annuities, legacies and charges, to Francis Fitzgerald, Esq., dency to be
his heirs, executors atid administrators. ^^^ penon^
On the 16th of May 1828, the original bill was filed by the resi- ^^^JeviJ^
duary devisee, against the trustees and executors of the will, praying J^® ^^^t^^
that the trusts of it should be carried into execution. A receiver real and per-
sonal, after
was appointed, by an order of the 25th of June 1823, and a decree satisfying and
discharging
said annuities,
Ac The income of the lands was insufficient to pay the entire of the annuities. —
Held, that the annuities, being charged on the income of the lands only, were, for
each year, satisfied by payment of a proportionable share, and that the arrears
were not charged on the niture rents.
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438 CHANCERY REPORTS.
1860. to account was pronounced, under which the Master made a report,
s» y ■ ^ by which he found that the rents were not sufficient to discharge
FITZQEBALI>
V, the annuities and charges created bj the will ; and he found a defi-
' ciency of £117. 7s. lid. to be proportionably abated by the said
Statement, annuitants, for the year ending the Ist of May 1823; and a defi-
ciency of £381. 15s. 4d. to be proportionably abated for the year
ending the 1st of May 1824. The report was confirmed by a decree
of the 26th of February 1826. Successive receivers continued in
receipt of the rents of the lands, which were, for a considerable time
insufficient to discharge the annuities ; but they had lately been let
at a greatly increased rent. A considerable arrear remained unpaid
on foot of the annuities, and, on the 8th of June 1869> an order was
obtained from the Master of the Rolls, whereby it was referred
to the Master to inquire and report whether there was any and
what sum due and in arrear on foot of the several annuities. The
Master made his report on the 16th of May 1860, and thereby found
that there was no sum due or in arrear on foot of the said annuities
up to the Ist of November 1869) being the gale-day prior to the
making of his report.
The trustees of the charities now moved, on objection to the re-
port, that the Master should have found that there were due to the
several charities certain specified sums on foot of the several
annuities.
Argument. ^^* PH^^ington and Mr. Lawless^ in support of the appeal, con-
tended that, according to the true construction of the will, the
several annuities ought to abate rateably, during the period when
the rents were insufficient to discharge the entire amount of the
annuities. The residuary devisee could take nothing until ^af^
payment and satisfaction of the annuities." The charge directing
an abatement of the annuities had the efiect of exonerating the
personal estate only, and not the real estate, from the payment
of the deficiency: Attorney- General v. Poulden{a)i Baker t.
Baker {b).
(a) 3 Hare, 555. (6) 6 H. L. Cas. 631.
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CHANCERY BEPOBTS.
439
Mr. Sullivan and Mr. Tkotiuu Graydon^ in support of the Mas-
ter's report, contended that, according to the true construction of
the will, the annuities of each year were onlj payable out of the
rents of the same year, and, in case of a deficiency, were to
abate proportionably ; and that the deficiency was not be paid out
of the future rents. They also contended that the question was
determined by the decree of the 25th of February 1825 : Sulfox y.
Sugden (a) ; Baker v. Baker {h) ; Farmer y. Mills (c) ; SeoU
y. Salmond{d)\ Wright y. Callender (e) ; Caaamqfar y. Pear^
son (f) ; Marquis of Bute y. Cimyngham{g) ; Darbon y. Richards (h).
1860.
RoUm.
riTZGBRAIiD
9.
o'ooirNxix.
Argumeni.
The Master of the Rolls.
A motion has been made in this cause, on behalf of the Goyemors
of St. John's Feyer Hospital, in the city of Limerick, the Directors
and Managers of the four seyeral Roman Catholic Schools of St.
Michael, St. Mary, St. Minchin and St. John's parishes, in the said
city, and the Goyemors of the Lying-in«Hospital, in the said city,
that the report of William Brooke, Esq^ bearing date the 15th of
May 1860, may be yaried. The Master has, by his report, found
that there is no sum due and in arrear on foot of the annuities
devised to the said seyeral charities by the will of Margaret White,
up to and for the 1st of Noyember 1859 ; whereas it is contended,
on behalf of the said charitable institutions, that there is the arrear
in the notice of motion mentioned due to the each of them respec-
tiyely, up to and for ihe said 1st of November 1859. The
question whether any arrear is due depends on the construction
to be put on the said will.
The wiU bears date the 22nd of Noyember 1814. The testatrix
Margaret White, by the said will, devised and bequeathed to Daniel
(yConnell, Esq., and the other trustees therein named, all her pro-
perty, real and personal, upon the trusts therein mentioned ; and,
affcer a direction that the trustees should apply the rents and profits
(a) lJohn.234.
(c)4BiU0.8e.
(e) 2 De G., M. 4 O. 652.
(g) 2Biifl8.427.
(b) 6 H. L. Cas. 631.
((0 lM.&K.d63.
098Cl.&P.e9.
(A) 14 Sim. 537.
1861.
Jtfu. 21.
Judgment.
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440
CHANCERY REPORTS.
1861.
RoUs.
VITZOEBALD
r.
O'CONNELL.
Judgment.
of a certain part of her real estate, on the trusts therein mentionedi
and that thej should pay a certain annuity to the testatrix's aunt,
Honora Kirby, out of the rest, residue and remainder of her property,
the will proceeds as follows : — ^< And upon this further trust and
confidence, that my said trustees, and the survivors or survivor of
them, and the heirs, executors and administrators and assigns of
such survivor, shall pay out of the rest, residue and remainder of my
said property the following yearly sums, for the following purposes;
namely, the sum of £20 a-year for ever to the Fenude Roman
Catholic Charity School in Denmark-street, in the county of the city of
Limerick, for the maintenance and use of the girls there admitted, as
the overseers or directors shaU think best to apply it ; and also the
sum of £20 a-year for ever, for the like purpose, to (he Charity
Female School at the Convent near Peter-cell, in the city of Lime-
rick, being a Roman Catholic Charity School ; and also the sum of
. £20 a-year, for ever, for the like purpose, to the Roman Catholic
Male Charity School of the parish of St. John ; and also the sum of
£20 a-year, for ever, for the like purpose, to the Roman Catholic
Male Charity School of St. Mary's, both said parishes being in
Limerick, or county of the city thereof ; and my will is, that if any
of said charity schools are discontinued, the annuity so payable to
Buch school shall be applied towards the benefit of the remaining
schools, in manner aforesaid : and u^on this further trust and confi«
dence, that my said trustees, and the survivors or survivor of theiii»
and the heirs, executors, administrators and assigns of such sur-
vivor, 9hall also pay out of my said property, towards the support
of the Fever Hospital of St. John's, in the city of I^imerick, the
sum of £50 a-year, for fifty years from the day of my decease ; and
also the sum of £10 a-year towards the support of the Lying-in-
Hospital, at Boherboy, in the suburbs of Limerick, for fifty years
from the day of my decease ; and also the sum of £40 a-year to
the House of Industry, on the North Strand, Limerick, for twenty-
one years from the day of my decease ; and also the sum of £S
a-year to the Physician's Dispensary, for twenty-years from the day
of my decease ; and also do pay to my domestic Honora Grady
the sum of £22. 15s. a-year, for the term of her natural life; hereby
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FITZGSBAU)
V,
O'CONNBLL.
CHANCERY REPORTS. 441
giving power and authority unto her, the said Honora Grady, by 1861.
will or deed, to continue such annuity of twenty guineas per annum,
for the term of twenty years from the day of the decease of the
said Honora Grady, in favour of such person or persons as, by will
or deed, she may direct and appoint ; and also to pay towards the Judgment
support of the poor of the parishes of St. Michael, St. Mary, St.
John and St. Minchin's, Limerick, unto each parish the yearly sum
of £30, for twenty years from the day of my decease, to be disposed
of amongst the said poor, at the discretion of my said trustees ; and
also the sum of £60 a-year for thirty-three years from the day of my
decease, unto the said Rev. Patrick Hogan, to be applied by him,
his executors, administrators or assigns, for the payment of the rent
and other expenses connected with the preservation of the chapel of
St. Michael's parish. Limerick."
The testatrix then bequeathed several pecuniary legacies to the
legatees in the will mentioned, and directed that her trustees and
executors should lay out the sum of £1000 in the establishment of
a Magdalen Asylum in the city of Limerick, or the suburbs thereof;
and then the will proceeds thus : — " And in further aid and
support of such intended Asylum my will is, that, upon the decease
of my said aunt, Honora Eirby, a yearly sum of £100 sterling
per annum shall be applied out of my property every year, for the
space of twenty years, to be computed and to commence from the
decease of said Etonora Eirby, and to go towards the maintenance
and support of said intended Asylum ; '' and then follows
this clause, on the construction of which the question arises : —
'*And further, I do, by this my will, declare my intention and
meaning to be, that the foregoing several annuities or rentcharges
(charitable or otherwise), and all and every annuity or' rentcharge
granted by this my last will and testament, are only to be a lien
upon, and charged and chargeable on, my yearly income by lands
and tenements, real, freehold, and chattel real, but not upon any
other personal estate in money, securities for money, or other
personal effects and property ; and further, my will is, that if my
yearly income by lands and tenements, real, freehold and chattel
real, shall fall short of paying the several annuities, yearly sums
VOL. 11. 56
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442 CHANCERY REPORTS.
1861. or rentcharges aforesaid, and any other granted' by this my will.
Rolls,
<.i^y ■ i^» that such deficiency shall equally and proportionably be upon all
V. such annuities or yearly sums, each to reoeive according to the
O'CONNSLL.
magnitude of such annuity, and in proportion thereto ; but no such
"'^ deficiency to be vested upon my personal estate in m6ney, securities
or effects."
The testatrix then bequeathed some other legacies ; and the will
contains this residuary clause : — " And as to the rest, residue and
remainder of my property, real, freehold and personal, and of every
other kind and nature whatsoever, so as aforesaid vested in my
said trustees, afler satisfying and discharging said several annuities,
legacies and charges, both charitable and otherwise, my will is, that
such residue and remainder shall go unto, and I hereby devise and
bequeath the same unto, said Francis Fitzgerald, of Adelphi, in the
county of Clare, his heirs, executors and administrators, according
to the true intent and meaning of this my will."
The question which arises on the construction of the will (unless
it be concluded by the report and decree in this cause, to which I
shall hereafter advert) is, whether the appellants, who, if I under-
stand the schedule to the report, have been paid the rateable
proportion of the annual rents received out of the lands on which
their annuities are a charge, are entitled to be paid the deficiencr^
in the amount of their respective annuities, out of surplus rents
which possibly may be received at some future time ? The Court,
so far as I understand the case, is called on to decide a question
as to what is the construction to be put on the will, in the event
of a state of facts which may never arise.
The observations of Lord Wensleydale, in Baker y. Baker (a),
establish, I apprehend, that the residuary clause in the present case
in no way extends the meaning of the clause on which the question
arises. Lord Wensleydale, in the preceding page, adverts to what
bis Lordship laid down in Gray v. Pearson (b). Now if, in the
present case, the " grammatical and ordinary sense of the words is
to be adhered to," and if the adhering to such grammatical and
ordinary construction in this case will not lead to any *' absurdity
(a) 6 H. of L. Cas. 631. (6) 6 H. of L. Cas. 106.
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443
or 8ome repugnancy or inconsistency with the rest of the instru-
ment," there does not appear to be much, if any, doubt in the
case. The clause in question is in these words. — [The Masteb of
THE Rolls read the clause, antey p. 441].
Thus the annuities were "only" to be a lien upon testator's
"ytfar/y income" by lands and tenements, <&c. ; and if the ^^t/early
income " by lands and tenements, &c., should fall short of paying
the annuities, it was the testator's wish that '^ such deficiency " should
'' equally and proportionably be on all such annuities or yearly sums,
each to receive according to the magnitude of such annuity, in
proportion thereto." Now if nothing had been said in the will
exonerating the personal estate, I cannot see that there could
be any reasonable doubt that the Master was right in holding
that no arrear was due to the appellants, between whom and the
other annuitants, as I understand the case, the annual rents
were distributed proportionably. But it is said that the language
of the part of the clause exonerating the personal estate from
the deficiency shows that the future surplus rents of the real
estate should be applied to make up such deficiency. I do not
think that the language exonerating the personal estate would
lead to any *' absurdity, repugnancy or inconsistency," in the event
of the Court construing the portion of the clause which relates to the
real estate according to the grammatical and ordinary sense of the
words. According to the grammatical and ordinary sense of the
words, so far as the annuities are charged on the real estate, the
annuities were to be paid in full, if "the annual rents" were
sufficient ; but they were " only " to be paid out of the " annual
rents;" and if the annual rents were insufficient, each annuity
was for that year to abate proportionably; and the annuity for
a particular year was, in my opinion, paid up, when the proper •
tionable part of the annual rents for that year was paid to the
annuitant.
It is to be observed that some of the annuities devised by the '
will are terminable; for example, there are two annuities devised
for fifty years, two for twenty-one years, two for twenty years, and
one for life. The will bears date in 1814. As I understand the
1861.
RoUs,
V- — . •
FXTZGBBALD
0*CONNBLL.
Judgment.
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444
CHANCERY REPORTS.
1861.
RoUm.
FZTZOBBAU)
r.
O'COMNELL.
Judgment,
schedule to the Master's report, the rents received have never
been sufficient to pay the annuities in full; and the appeal is
brought on the assumption that at some future period there pos-
sibly may be a surplus rental to be applied to pay off the alleged
arrears.
It was not stated by Counsel when the testatrix died ; but as
the probate was granted on the 8th of February 161 5, she must
have died before that day. Thus the two annuities for twenty-one
years, and the two annuities for twenty years, devised by the will,
have determined, and the annuities for fifty years will soon deter-
mine. Are the arrears which are due on the annuities which
have determined, and will determine, to be paid twenty years hence,
or at the end of any other number of years after the termination of
the annuities? Is the Statute of Limitations to be a bar at the
end of six years, although there was no fund to pay the alleged
arrears during the six years? The difficulties which would ariae
from not adhering to the grammatical language 6f the will would
be numerous.
I am of opinion, on the whple, that the construction sought to
be put on the will by the appellants cannot be sustained.
If this be so, it is not necessary to consider the remaining question
as to the effect of the decree of the 25th of February 1825, and
the report therein mentioned. It is said that the Master considered
the question concluded by that decree. I entertain doubt on that
point, but it is not necessary to decide it, if the construction whidi
I put on the will be correct. The motion will be refused with costs.
This case was argued in Trinity Term ; but the attested copy of
the Master's report was not in Court, but only the draft report^ on
which I refused to act. The report was not sent to the Court
until the last Sittings. It is impossible for the Court to decide
cases unless on attested copies of the documents.
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CHANCERY REPORTS. 445
1861.
Rolh.
TOBIN V. REDMOND.
Jan. 15.
Parsons Fr atne, being seised for lives renewable for ever of the a demised oer-
lands of Ballydicken, in the county of Wexford, demised thirty- fo^ Uy^g ^^
three acres of the said lands', by a lease of the 25th of March evCT?^^at%0
1803, to Richard Phelan and his heirs, for three lives, reserving ^fj^^^'
a rent of £70, with power of distress. Richard Phelan died in ^ed to pur-
1809, intestate, whereupon the interest in the lease became vested lessee's in-
'^ tereat, then
in his eldest brother^ Matthias Phelan, as his heir-at-law. Parsons vested in B, in
consideration
Frayne agreed to purchase the interest in the lease, for a perpetual of a perpetoal
« ^ , , ,<r , . retttcharge of
annuity of £20 a-year; and, to carry out the agreement, Matthias £20 a-year;
Phelan, by a lease, bearing date the 6th of November 1812, demised ^^ ^^ *^^
the thirty-three acres to Robert Phelan, the father of Richard. and x^dthelimds
Matthias, for the same lives as those in the lease of the 25th of March fPT ^! ■*°^®
' lives, renew»-
1803,reservingarentof£90, with power of distress, in trust for Par- *^^J ^^^ ®^^»
sons Frayne and his heirs. Parsons Frayne became insolvent in 1 8 1 7, £^. *-yew» to'
■^ "^ C, in trust for
and died on the 6th of August 1820, leaving Waller S. Frayne A. C died;
whereupon the
his heir. Robert Phelan died intestate, leaving Matthias Phelan interest in the
Ifttter lease be-
his heir. A bill was filed by a creditor of Parsons Frayne, against came vested in
his assignee and heir-at-law, in the Court of Exchequer; and atllaw.— J5re/<^
the lands of Ballydicken having been sold under a decree of that could be main-
Court to the respondent, John Edward Redmond, they were con- J^^^j^^ ^
veyed to him on the 27th of June 1834. The covenant against recover the wr-
•^ *=* rears of the
incumbrances excepted an annuity of £18. 9s. Sfd., payable out 5S?^^* ^^
of the said lands, which annuity was admitted to be a profit-rent being no re-
medy for it
of £20 a-year, Irish, reserved by the lease of the 6th of November at Law.
1812. A bill was filed by Matthias Phelan against the respondent, Statement,
in 1839^ to recover the arrears of the £20 a-year, which stated
the agreement under which the lease of the 6th of November
1812 was executed; and a decree pro confesso was pronounced
on the 11th of February 1840. The statement in the bill, and
the decree pro confesso, were the only evidence of the agreement.
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446
CHANCERY REPORTS.
-1861.
RolU.
' /— ^
TOBIN
V.
BEDHOND.
Statement.
Matthias Phelan died on the 22nd of October 1856, having devised
all his landed property (except a specified part of it) to the peti-
tioners.
The petition in this matter prajed for a receiver to receive the
arrears of the rentcharge of £20 a-year ; and the matter having
been referred to Master Brooke, under the 15th section of the Court
of Chancery (Ireland) Regulation Act 1850, he, by a decretal order
of the 6th of August I860, declared the petitioners entitled to a
perpetual annuity of £20 a-year, charged on the thirty-three acres
of the lands of BaUydicken, and referred it to the Receiver-master to
appoint a receiver to collect the sum of £129* 4s. 9d., which he
found to be due on foot of the said annuity. From that order the
respondents appealed. After the hearing of the appeal motion, an
affidavit was made, by which it appeared that one of the cestuis que
vie of the leases of 1803 and 1812 was stiU alive.
Argument, Mr. Serjeant Sullivan and Mr. ff, Barry ^ in support of the
appeal, argued that the annuity or profit-rent of £20 a-year could
have no longer duration than the yearly rent of £90 reserved by
the lease of the 6th of November 1812. That the right to recover
the rent of £90 a-year was a legal right : Brady v. Fitzgerald (a) ;
Cretnen v. Hawkes (b) ; and Parsons Frayne was not liable to the
payment thereof, as an equitable debt due by him to Matthias Phe-
lan. At Common Law, the lease of the 6th of November 1812
operated as an assignment of the interest in the lease of the 26th of
March 1803; and that interest having descended, on the death of
Robert Phelan, to Matthias Phelan, the rent of £90 a-year was extin.
guished at Law ; and there was no equity to prevent its extinction in
the view of this Court. But, if it was not extinguished, the equi-
table right was commensurate with the legal right for which it was
substituted, and which continued only during the lives of the leaae
of the 6th of November 1812 : Mitf. on Pl^ p. 134. The relation
between the parties was that of landlord and tenant, which was a
legal and not an equitable relation : Cox v. Bishop (c) ; and one
(a) 11 Ir. Eq. Rep. 55. (6) 8 Ir. Eq. Rep. 153, 508,
(c) 26 Law Jour. 389.
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447
which the Court would uot enforce indirectly : Harrison v. Duig-
nan (a). The respondent was only liable to the same extent as
Parsons Frayne. Evidence was not admissible of the contract on
which the lease of 1812 was founded; and, if it was, there was no
evidence of it except the statements in the bill on which the decree
pro confesso was obtained. However conclusive that statement
might be in that suit, it was not evidence in this : Hamilton v.
HaugJUon (3).
1861.
RoUs.
^— y '
TOBIN
V,
REDMOND.
Argument.
The SoUeitor-General and Mr. Tan^^ contra.
The substance of the transaction of 1812 was a contract for the
purchase of the interest in the lease of 1803, in consideration of a
perpetual annuity of £20 a-year. The respondent is estopped by
the decree pro confesso from denying that contract ; and the Court
will presume the execution of the deed necessary to carry it out :
Hillary v. Waller {c) ; The Mayor of Kingston-ypon-Hull v. JTor-
ner (^d). The legal estate in the lease of the 6th of Nove^iber 1812
having become vested in Matthias Phelan, he could not recover the
rent at Law ; therefore, the principle of the decisions of Cremen t.
Hawkes (e) and Brady v. Fitzgerald (f) does not apply.
The Mastbb of the Rolls.
A motion has been made in this case, by way of appeal from the
decretal order of Master Brooke, signed the 6th of August I860.
The petition was for the recovery of the arrears of a certain annuity
or rentcharge of £20 a-year, late currency, in the petition men-
tioned ; and the case was referred to the Master, under the 15th
section of the statute. The Master, by his order of the 6th of
August 1860, declared the said petitioners entitled to a perpetual
annuity of £20, late currency, in the petition mentioned; and that
the same was well charged upon the lands and hereditaments there-
inafter mentioned ; and it was by the said order further declared
that the said petitioners were entitled, on foot of the said annuity,
(a) 2 Dr. & War. 294.
(c) 12 Ve«. 239.
(«) Uhi supra.
(6) 2BU. 169.
(</) Cowp. 102.
(f) Ubi supra.
Jan. 17.
Judgment,
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448 CHANCERY REPORTS.
1861. to tbe sum of £129. 4s. 9d., the particulars of which are set forth in
^J!^ the second schedule to the said order; aud it was further declared
TO BIN
^ that the petitioners were entitled to the accruing gales of the said
RBDMOND. annuity, from the 25th of March 1860, and to the costs incurred in
Judgment. *^*^ matter, when taxed ; and it was referred to the Receiver-master
to appoint a receiver over tbe lands thereinafter mentioned, that is
to say, that part of the lands of Bally dick^n, containing thirty-three
acres, Irish plantation measure, situate in the county of Wexford,
<fec., &c. ; and it was further ordered that the receiver should apply
the funds in his hands from time to time in payment of the said
arrears, accruing gales and costs. The notice of appeal seeks that
the Master's order may be set aside, and the petition dismissed with
costs.
The facts of the case appear to be as follow : — Parsons Frayne,
being seised of the lands of Ballydicken, ^or three lives renewable
for eyer, demised the thirty-three acres in the Master's order men-
tioned, by indenture, dated the 26th of March 1803, to Richard
Phelan, for the same three lives, with covenant for perpetual renewal,
at the rent of £70 a-year, late currency.
Richard Phelan died intestate, and his interest under the said
indenture of 1803 became vested in his eldest brother and heir-
at-law, Matthias Phelan, in some of the documents called Matthew
Phelan. Parsons Frayne agreed, in the year 1812, to purchase the
interest of Matthew Phelan, and, in consideration of the said purchase,
to grant the said Matthias Phelan a perpetual annuity of £20 a-jear,
late currency. The mode in which this agreement was to be car-
ried out was this : — ^Matthias Phelan was to demise to Robert Phelan
the said thirty-three acres, for three lives renewable foY ever, at a
rent of £90 a-year, the said Robert Phelan, who was the father of
Matthias Phelan, being a trustee for Parsons Frayne.
A lease, bearing date the 6th of November 1812, was accordingly
made by the said Matthias Phelan to the said Robert Phelan, of the
said thirty-three acres, for the said term and fit the said rent. The
lives in the lease of 1812 were the same as those in the lease of
1803. Thus Parsons Frayne, as quasi landlord of Matthias Phelan,
was entitled to receive from him £70 a-year, late currency, reserved
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CHANCERY REPORTS. 449
bj the lease of 1803; and Parsons Frayne, as cestui que trust of 1861.
EoUs.
the lease of the 6th of November 1812, was bound to pay the £90 v -^ y
TOBrM
a-year to Matthias Phelan ; and the result was that Parsons Frayne, ^
deducting the £70, late currency, from the £90, late currency, was REDHONDk
bound to pay £20 a-year, late currency, to Matthias Phelan ; and, judgment*
accordingly, the said Parsons Frayne continued to do so until his
discharge as an insolvent debtor in 1817; and in his schedule he
stated the £20 a-year to be an annuity or rentcharge for ever,
issuing out of the said lands.
Parsons Frayne died on the 6th of August 1820, leaving a widow
and Waller S. Frayne, his heur-at-law, him surviving. On the 9th
of May 1823, a bill was filed by Thomas Sparrow and another, as
creditors of Parsons Frayne, against John Cooper, the assignee -of
Parsons Frayne, under the Insolvent Act, and against Waller S.
Frayne and others; and the entire of the lands of Ballydicken,
including the said thirty-three acres, were sold under the decree,
to the respondent John Edward Redmond, on the 27th of June 1834.
Robert Phelan, the lessee, or quasi lessee in the indenture of the
6th of November 1812, in trust for Parsons Frayne, died intestate,
many years ago, and Matthias Phelan was his heir-at-law.
The effect of this, at Law was, that Matthias Phelan, who was
liable to pay the £70 a-year, late currency, under the lease of 1803,
to Parsons Frayne or his assigns, was entitled, under the indenture
of the 6th of November 1812, to receive from himself, as heir-at^
law of Robert Phelan, the £90 a-year, late currency, the legal title
of his father Robert Phelan having descended on him ; but as
Robert Phelan was trustee for Parsons Frayne, Matthias Phelan was
entitled, in Equity, to receive out of the thirty-three acres £20
a-year, late currency, being the difference between the £70 a-year
and the £90 a-year.
There is no evidence to show that the lives in the indentures of
1803 and 1812 are dead, and it has been stated that one of the lives
is in being. The presumption is in favour of life : Wilson v.
Hodges (a) ; and the petitioners do not seek to file any affidavit to
show that the lives have fallen ; and this being so, I must assume
(a) 2 East, 312.
VOL. 11. ^ 57
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450 CHANCERY REPORTS.
1861. that all the lives have not fallen.* The £20 a-year, late cor-
> r-^ rencj, is, tiierefore, I apprehend, still payable. Whether it will
TOBHf
cease when the last of the lives in the indentures of 1803 and 1812
BEDMOND. shall fall, it is unnecessary for me to decide.
Judgment. '^^^ conveyance to the respondent, bearing date the 27th of June
1834, and made under the Exchequer decree of the 21st of January
1832, was not made expressly subject to the said annuity of £20
a-year ; but the covenant against incumbrances excepts ^ a certain
annuity of £18. 9s. 3|d., payable out of the said lands of Bally-
dicken.** £18. 98. 3fd., present currency, is equivalent to the £20
a-year, kte currency, and there is no doubt that the respondent
had notice of the annuity, which was that referred to in the said
covenant What was sold, under the decree of the 21st of
January 1832, to the respondent, was, in my opinion, subject to
the contract for the rentcharge of £20 a-year, which was carried
into effect by the indenture of the 6th of November 1812. An
arrear of £92. 6s. 2d., of the said annuity of £20 a-year, late cur*
rency, having fallen into arrear, a bill was filed in 1839> by Matthias
Phelan, against the respondent John Edward Redmond, to recover
such arrear ; and a decree pro confesso was pronounced against the
respondent on the 11th of February 1840, who paid the arrear then
claimed, and the costs; and the respondent continued to pay the
annuity up to 1847. The bill, which was taken pro confesso against
the present respondent, stated very precisely the facts from which
the liability to pay the £20 a-year appeared. With respect to
the decree pro confesso^ I do not think that it absolutely estopped
the respondent in this suit, as has been contended : HamiUan v.
Hamilton (a) ; but I apprehend that the decree pro cotrfesso was
prima facie evidence, as against the respondent, of the facts stated
in the bill, on which such decree was founded, having regard to
the respondent hdving, after such decree, paid the arrears claimed
by the bill, and the costs of the suit.f No evidence has been
(«) 3 Bligh, O. S., 184.
* It appeared aften^ards, by affidayit, that one of the liyes la in being.
t See The Earl ofMUtoum y. Stewart (8 Simons, 371), affirmed on i^peal,
3 M. & Cr. 18.
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CHANCERY REPORTS.
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given to show that the claim then admitted was admitted under a
mistake. If one of the lives in the indentures of 1803 and 1812 is
in being, which, on the evidence, I am to presume is the case, the
facts are not altered since the date of the decree pro eonfesso.
I am of opinion that the case of Cremen v. Hawkes (a), and the
case of Brady v. Fitzgerald {b\ do not apply, having regard to the
fact that Matthias Phelan, the quaH landlord in the indenture of
the 6th of November 1812, became, by the death of his father intes-
tate, and as his heir-at-law, entitled to the interest of his father,
under the said indenture. He was trustee for Parsons Frayne, but
at Law he could not sue himself.
I think the petitiopers are in the same difficulty, and have no
remedy at Law ; and having regard to the contract between Parsons
Frayne and Matthias Phelan, which was a contract for a renteharge,
although carried out in a very strange manner, I am of opinion that
the decision of the Master, which is in accordance with the justice
of the case, is sustainable.
The motion will be refused, with costs.
(a) 8 Jr. £q. Bep. 153 and 503. (6) 12 Jr. £q. Rep. 273.
1861.
Rolh.
TOBIN
V.
RBDHONI).
Judffmtnt,
HARLEY v. HARLEY. 1860.
April 17,
Jufy 9, liov, 7.
The petition was filed for a partnership account of the firm of The defendant
Austin Harley and Company, and was referred to Master Brooke, SonbeSff ^e
under the 15th section of the Court of Chancery (L^land) Regula- '^^'^f^^"
tion Act 1850. The case was now heard on appeal from an order "liarMinasliip,
was delivered to
the Sheriff; and the solicitor for the creditor, hy the direction of the Sheriff, procured
the certificate of regiitiy from the ship, and delivered it to the Sheriff, who retained
it. The Sheriff was registered at the Cnstom-honse, under the Merchant Shipping
Act, as the owner of the shares, which were afterwards sold hj him and transferred to
the purchaser by a bill of sale, which was also TepBUared.—Heid, that the seizure
was efiectoal, although the Sheriff did not go on board the ship, and that the pro-
perty in the shares was regnlarlj transferred by the biU of sale.
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452
CHANCERY REPORTS.
1860.
RoUa.
BARLEY
V.
HARLBY.
Statement.
of the Master, made In this matter, on the 26th of January 1860, bj
which he declared that the several ships mentioned in the order
were not dulj or lawfully seized by the Sheriff, and were not duly
or lawfully assigned to Edward Scott, the appellant.
The facts of the case, as they ultimately appeared, were as fol-
lows:— ^In June 1850, John Harley was a member of the firm of
Austin Harley and Co. He retired from the firm in favour of
James John Harley ; and, in consideration of his so retiring, James
John Harley executed a bond and warrant of attorney to enter
judgment, to John Harley, for the penal sum of £2003. Is. lid., on
which judgment was entered on the 14th of October 185Q. On the
15th of October 1856, a writ o^Jieri facias, on foot of the judgment,
was lodged with the Sheriff of Cork, and the Sheriff was required
to seize, under the said writ, the shares of James John Harky in
the several ships in question, which were the property of the firm.
When the writ of execution was lodged with the Sheriff, none of
the ships were in the harbour of Cork. As they successivdy arrived,
the solicitors for the judgment creditors obtained, by the directioa
and authority of the Sub-sheriff, the certificate of registry of each
vessel, and handed it over to the Sub-sheriff. The Sub-sheriff did
not go on board, and make a formal seizure of the shares of James
John Harley in the. said ships. But he retained the certificates of
registry until after the sale, and he then returned them to the other
part-owners of the ship.
The certificate of registry of one of the vessels, the ** Anne,"
was in the following form: —
«< CERTIFICATE OF BRITISH REGISTRY.
*^ This is to certify that, in pursuance of an Act passed in the
8th and 9th years of the reign of Queen Victoria, intituled < An Act
for the Registration of British Vessels * —
** James Austin Harley, merchant, and John Harley, solidtor,
having made and subscribed the declaration required by the said
Act, and having declared that they, together with Edward Scott,
architect, all of the city of Cork (signal letters E. C. J. P.), are
sole owners (in the proportions specified on the back hereof) of
the ship or vessel called the 'Anne' of Cork, which is of the
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CHANCERY REPORTS.
453
burthen of one hundred and seventy-nine 74-94th tons, and whereof
Austin barley is master; and that the said ship was built at
Hylton, in the county of Durham, in the year 1833, as appears by
the former certificate of registry, No. 40, granted at London, 12th
of February 1833, now delivered up and cancelled, on a change of
property ; and Bryan Adams, tithe-surveyor, having certified to us
that the said ship or vessel has, &c. (here followed a minute descrip-
tion of the vessel) ; and the said subscribing owners having con-
sented and agreed to the above description, and having caused
sufficient security to*be given, as is required by the said Act, the
said ship or vessel called the ' Anne * has been duly registered at
the port of Cork.
^' Certified under our hands, at the Custom-house, in the said port
of Cork, this 8th day of December, in the year 1849.
"T. Cassell, Collector.
"G. C. Hamilton, Comptroller.'*
This certificate had the following indorsements : —
1860.
RolU.
Statements
" Names of the several Owners within
mentioned.
Number of sixty-fourth shares held
by each Owner.
James Austin Harley,
John Harlej,
Edward Scott,
Thirty-two 32
Sixteen 16
Sixteen 16
64
*<T. Cassbll, Collector.
** G. C. Hamilton, Comptroller."
•* Custom-house, Cork, x Edward Scott, of the dty of Cork, architect,
29th of May 1852. f has transferred, by bill of sale, dated the
31st of January 1852, sixteen sixty-fourth shares to James Austin Harley, of the
city of Cork, and of the firm of Messrs. Austin Harley and Son, coal merchants.
Certificate of Registry produced and indorsed this 1st day of October 1852.
" T. Cabskll, Collector."
** Custom-house, Cork,
I4th of March 1853.
-k James Austin Harley, of the city of Cork,
_) coal merchant and ship-owner, has trans-
ferred, by bill of sale, dated the I2th of March 1853, sixteen sixty-fourth parts
or shares, to James John Harley, of the dty of Cork, coal merchant.
"J. Abbott, Collector.
*< G. C. Hamilton, Comptroller."
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454
CHANCERY REPORTS.
1860.
RiMs.
Statement.
" CuBtom-house, Cork, . John Hariey, of the city of Cork, attoroey-afc
14th of March 1853, [. law, has tranafened, by bill of sak, dated the
12th of March 1853, sixteen sixty-fourth parts or shares, to James John Hariey,
of the dty of Cork, coal merchant or ship-owner.
*'J. Abbott, Collector.
"G. C. Hamilton, Comptroller."
The certificates of the other vessels were similar, mutatis mutandis^
to the foregoing.
After the certificates were handed oyer to the Sub-sheriff, he
produced them to Mr. Cassell, the Collector of the Harbour of
Cork, and apprised him that the shares of James John Hariey in
each of the vessels had been seized, and the following declaration
of ownership was made by him with respect to the *' Anne : ** —
** I, the undersigned Thomas Ware, duly appointed Sub-sherifiP
of the county of the city of Cork, declare as follows :-«jrame8
John Hariey, the person appearing by the Register-book to be
the owner of thirty-two sixty-fourth shares in the ship above
described, was, on the 15th day of October 1856, duly dispos-
sessed of said thirty-two sixty-fourth shares, by virtue of a writ
of ^fieri faciasy directed to Sir William Lyons, High Sheriff of the
said city of Cork, issued out of Her Majesty's Court of Queen's
Bench in Ireland, bearing date the 14th day of October 1856 ; and
that under said writ the said Sir William Lyon« is entitled to be
regbtered as owner of the said shares of the said ship : and I make
this solemn declaration conscientiously believing the same to be true.
(Signed), in the presence of — ** Thomas Wabe.**
<' Made and subscril^d by the above-named Thomas Ware, 1st
of November 1866. ^
(Signed)— «F. Casseu."
An entry was also made in the register at the Custom-house at
Cork, of which the following is a copy :* —
The Sub-sheriff afterwards sold the shares of James John Hariey
in the several ships, for £1000, to Edward Scott, in trust for John
Hariey. The Sub-sheriff received that sum, and he transferred the
shares by bill 9f sale to John Hariey ; and paid over the sum of
* For entiy see next page*
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CHANCERY REPORTS.
455
o
o
en
p?
p?
pi;
>-•
p?
£8
1860.
RoUs.
Statement.
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1860.
Statement*
456
CHANCERY REPORTS.
£954. 13s. Id., the amount of the purchase-money, after deducting
the fees and expenses, to* John Harley.
The following entry was afterwards made in the register : —
Col. 1.
CoL2.
Col. 3.
CoU.
Col. 5.
Col. 6.
CoL7.
2
Sir Wm. Lyons,
Knight
32
7th Nov.
1856, at
J 3, pan.
Bill of sale
dated 7th
Novem-
ber 1860
John Harley,
of the dty of
Cork. Esq.
The following indorsement was also entered on the certificate of
registry: —
Names of the several persons owners of the
Ship within described, on the 14th of
November 1856.
Number of sharts held hf
each Owner.
James Austin Harley, of the city of Cork,
Merchant
John ^arley, of the city of Cork, aforesaid,
Esq.
Thirty-two.
Thirty-two.
On the 6th of April 1857, John Harley assigned, by bill of sale,
sixteen sixty-fourth shares of the said ships to Edward Scott ; and
the assignment was duly registered.
Argumentn
Mr. Chatterton and Mr. C H, Woodroffcy in support of the
appeal, argued that the shares of John James Harley in the ships
had been properly seized by the Sheriff, and properly transferred by
him. As to the seizure, it had been made in the only way in which
the nature of the property would admit of. The interest in a lease
for years was seized by the Sheriff taking possession of the lease.
The seizure of the certificate of registry of the ship was analogous to
the seizure of the lease : Doe d. Westmoteland v. Smith (a) ; Plat/fair
V. Musgrove {b) ; Rex v. Deane {c) ; Taylor v. Cole (d) ; York v.
V. Twine (e); Doe v. DoustonffJ; Doe v. Brawn(g)\ Coleman
v. Rawlifuon (h) ; Abbott on Shipping^ p. 259 ; Woodgate v. Knatch-
(a) 1M.&B. 137.
(c) 2 Show. 85.
(«) Cro. Jac 79.
(^) 5 B. & Aid. 243.
(6) 14 M. & W^ 239.
(<0 3 T. R. 295.
(f) 1 B. & Aid. 230.
(h) 1 Fos. ^ Fin. 330.
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CHANCERY REPORTS. 457
bull (a). There was no form prescribed, for the transfer of the shares I860,
of a ship, by the Merchant Shipping Act ; but the coarse adopted in
this case was the nsnal one sanctioned by the Solicitor of Cvistoms
in London.
Mr. Berkeley, for the petitioner, contended that, although the
property in a ship might be symbolically seized, something more
miist be done than merely taking possession of the certificate of
registry. The old rule was, that there must be an actual manual
seizure by the Sheriff. That was afterwBrds modified ; but it was
still necessary that the Sheriff should go into possession of some part
of the property : Blades y. Arundale (jb) ; Wilbraham v. Snow {c) ;
Coleman v. Rawlinson {d) ; Mildmay y. Smith (e) ; Giles v. Gro-
9er (f) ; Godson v. Sanctuary{g) ; Johnson v. Evans (h) ; Balls v.
Thick {i); Ball v. Roche (k); Bousin v. Barron (l); Bac. Ah.,
Execution^ 4.
Argument
The Master of the Rolls.
TVov 7
A motion, has been made in this case, by the respondent Edward judgment*
Scott, by way of appeal from so much of the order of William
Brooke, Esq., the Master in this matter, signed the 26th of January
1860, as declares that the several ships belonging to the firm of
Austin Harley and Co. were not, nor was any of them, duly or
lawfully seized by the Sheriff; and that same were not duly or law-
fully assigned to the said Edward Scott, but continued partnership
property ; and that, instead thereof, it be declared that James John
Barley's share in the several ships was duly seized by the said
Sheriff, and was duly and lawfully assigned to the said Edward
Scott, and did not continue the partnership property of the said
firm. This case was brought before the Court, when the motion
(a) 2 T. B. 157. (6) 1 M. & Sel. 711.
(c) 2 Saimd. B. 47. (<0 1 ^o*- * F- 330.
(e) 2 Saund, 344. (f) 9 Bing. 128.
(g) 4B.& Ad. 256. (A) 7 Sco. N. B. 135.
(e*) 9 Jur. 305. (A) 8 T. B. 187.
(0 6 T. B. 122.
VOL.11. 58
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458
CHANCERY REPORTS.
1860.
Rolb.
Judgment,
was originally moved, in a very unsatisfactory manner, the facts
not having been properly investigated; and upon the docoments
now before the Court, and which were not, I believe, before the
Master, I do not understand what right Edward ScotI had to
move, as, although he became the purchaser under the execution, as
trustee for John Harley the elder, the assignm^t, or bill of sale,
by the Sheriff, was to the said John Harley.* However, as Edward
Scott purchased under the execution, as trustee for John Harley, I
shall not turn the appellant round on this objection, but allow a
proper notice now to be served ; but it is most inconvenient, the
parties not having taking the trouble of laying copies of the docu-
ments before the Master, or having the case argued before him
on the actual state of filets.
The Jierifaciast under which the Master bald there was no seizure,
was issued on a judgment obtained by the said John Harley ag^st
the said James John Harley, and was delivered to the Sheriff on the
15th of October 1856, and was returnable on the 3rd of November
1856, but was not returned until the 11th of July 1860, although
it should, of course, have been returned before the case was heard
before the Master. It was a strange proceeding to ask the Court
to decide on the validity or invalidity of proceedings under a writ
ndt returned.
The, Sheriff, by his return, states that he caused to be made of
the goods and chattels of the said John James Harley the sum of
£1027. lOs., part whereof he retained for poundage and expenses,
and £972. 10s., the residue thereof, he rendered to the said John
Harley, in part satisfaction of his debt and costo.
This was a suit for the taking of the partnership accounts of the
firm of Austin Harley mi CoiQpany, and which was referred to the
Master, under the 15th section of the statute. The petition is
framed in such a manner that it is very difficult to uuderstand the
prayer of the petition. It seeks that the Court should declare
that '* the said co-partnership has been dissolved, and is at an end ; "
and it then seeks that the necessary partnership accounts should be
taken. Now the petition adverts to different partnerships, and.
* * It appeared, after the Court had given judgment, that, on the 6th of Apiil
1857> John Hailey assigned some of the shares to Edward Soott.
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CHANCERY REPORTS.
459
therefore, it is verj difficult to determine what is meant bj the term
" the said co-partnership, " in the prayer. I believe the co-partner-
ship intended to be referred to was that formed on the 7th of Jane
1850, between Austin Harley, the petitioner James Austin Harley
and James John Harlej. If that be so, it is difficult to understand
how, in such suit, the question as to the validity of an execution
against James John Harlej, at the suit of John Harley, should pro-
perly arise or be properly decided. The principal respondent is
Eliza Henrietta Harley, the personal representative of James John
Harley, deceased, who was the defendant in the execution. John
Harley, the plaintiff in the execution, had been a member of a
former firm, and be retired from the firm in favour of the said James
John Harley, about the month of June 1850; and in considenation
thereof the said James John Harley executed a bond and warrant
of attorney, dated the 7th of June 1850, in the penalty of £2003.
Is. lid., on which judgment was entered on the 14th of October
1856. The writ of ^fieri faeiai was delivered to the Sheriff of the
city of Cork, on the 15th of October 1856. The solicitor for John
Harley, the execution creditor, required the Sheriff to seize under
the said writ the shares of the said James John Harley, the defendant
in the execution, in the several ships following; that is to say,
the " John Harley," the " Darnley," the " Markland," the " Sut-
^cliffe,'' the " Jessie," and the '* Anne ; " and the questiofi, supposing
it can be decided on the record in this suit, is, whether the Master
was right in hdding that the shares of the said James John Harley
in those ships were not duly or lawfully seized, or duly or lawfully
assigned?
The facts of the case, as they appear by affidavits made on the
2nd and 15th of June, by the Sheriff and by the solicitor for the
plaintiff in the execution, and which were made since the appeal
was moved, are as follow : — At the time of the lodgment of the exe-
cution with the Sheriff, none of the said ships were in the port of
Cork, and therefore they were not within the bailiwick of the Sheriff,
the ships being on voyages to the port of Cork. The affidavit of
the solicitor for the plaintiff in the execution states that the ships
would not be allowed to go to sea without having the registers on
board ; and that the register must always be kept on board, for her
1860.
noils,
HARLEY
V.
HAALET.
Judgment,
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CHANCERY REPORTS.
1860.
RoUs.
Judgment.
lawful navigation. That the said vessels arrived at the port of
Cork on the following days respectively, that is to say, the " John
Harlej " on the 26th of October 1856 ; the *' Darnley " on the 29th
of October in said year ; the " Markland " on the 28th of October
in said year ; the *' Sutcliffe ** on the 27th of October in said year;
the '* Jessie** on the 23rd of October in the said year ; and the
'^ Anne '' on the 22nd of October in said year. The said vessels
remained in the port of Cork, within the bailiwick, antil some time
afler the execution by the Sheriff of the bills of sale of the shares
therein respectively of the said James John Harley. The solicitor
for the execution creditor, as each of the said vessels arrived, at and
immediately after such arrival, and while each vessel was lying at
the port of Cork, obtained, by the directions and authority of the
Sub-shenff, from on board each such vessel, her register, and handed
over same to the Sub-sheriff, at the respective times following: —
that is to say, the register of the " John Harley " on or about the
26th of October 1856; that of the "Darnley'' on or about the
29th of October in said year; that of the '* Markland ** on or
about the 28th of October in said year; that of the ''Sutdiffe**
on the 27th of October in said year ; that of the " Jessie " on the
23rd of October in said year; and that of the ^^Anne" on the
22nd of October in said year.
The Sub-sheriff retained the said registers until he had com-
pleted the sale of the shares of the said James John Harley in
said vessels respectively ; and the Sub-sheriff, after he had completed
the sales, returned the registers to the other part-owners of the
vessels. Copies of the registers, in the stbte in which they were
when delivered to the Sheriff, and copies of the registers in their
present state, have been verified and laid before the Court.
The Sub-sheriff did not go on board the vessels and make a
formal seizure of the shares of James John Harley therein, con-
sidering that the lodgment of the register of each vessel with him
(the vesseb being within his bailiwick at the time) authorised him
to sell the shares of the defendant in the execution in each vessel,
and to make an assignment and transfer of such shares, under the
provisions of the Merchant Shipping Act.
The Sub-sheriff sold to Edward Scott, in trust for John Harley
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461
the elder, the plaintiff in the execution, the said shares, for £1000;
and the affidavit of the Sub-sheriff, filed the 2nd of June I860,
states that he received said sum, and that, on the 17th of October
1866, he paid to the said John Harley the elder the sum of £964.
13s. Id., in part payment of the sum due on the execution ; and the
affidavit then accounts for the balance.
The copies of the documents which have been produced, and
which are made evidence by the 1 07th section of the Merchant
Shipping Act, establish the mode in which the transfers of the
shares of James John Harley, the defendant in the execution, were
made by the Sheriff; and it will be sufficient, as an example, to take
the case of the vessel called the " Anne."
The document indorsed " 0 " is a copy of the register of the
''Anne,'' the original of which was lodged with the Sub-sheriff
on the 26th of October 1856. The Sub-sheriff having produced
to the Registrar in Cork the said writ oi fieri facias^ the follow-
ing entry was made by the Registrar, in the books kept for the
purpose of registering transfers, under the provisions of the Mer-
chant Shipping Act. The port is stated '^ Port of Cork ; " the name
of the ship is entered " Anne ; " under a column headed '^ name of
person from whom title is derived," the name of *' James John
Harley," the defendant in the execution, is entered ; under the
column headed *' number of shares affected," the number *' 32 " is
entered ; under the column headed '* date of registry " is entered
" 1st of November 1856, at 3^ p.m. ; " under the column
headed '* nature and date of transaction," is entered '' writ of
fieri faeiasy forth of Her Majesty's Court of Queen's Bench, Ireland,
dated the 14th of October 1856;" and under the column headed
'* name, residence and occupation of transferree, mortgagee, or
other person acquiring title or power," is entered "Sir William
Lyons, Knight, High Sheriff of the county of the city of Cork."
On the same 1st of November 1866, the High Sheriff exe-
cuted to John Harley, the plaintiff in the execution (Edward
Scott having purchased in trust for him), a bill of sale of the
thirty-two shares of James John Harley, the defendant in the exe-
cution ; and the High Sheriff thereby covenanted, for himself and
hi9 heirs, that he had power to transfer the said shares, and that
1860.
Judgment
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462
CHANCERY REPORTS.
1S60.
EolU.
y , ^
HARLBT
V.
HARLBT.
Judgmint.
same were free from incumbrances. It appears that said bill of
sale was registered under the provisions of the Merchant Shipping
Act, on the 7th of November 1856. In the copy of the entry
produced from the registry in the port of Cork, duly certified^
in the column headed '' name of person from whom title is derived,**
is entered " Sir William Lyons, Knight ; ** under the oolomn headed
'* number of shares affected,*' is entered the figure " 32 ; ** under the
column headed "date of registry,*' is entered "7th of November
1866, at ^ P.M.;" under the column headed "nature and date
of transaction/* is entered "bill of sale dated 7th of November
18416 ; " and under the column headed " name, residence and
occupation of transferree, mortgagee, or other person acquiring
title or power," is entered " John Harley, of the city of Cork,
Esquire."
By the same document, and by another document also given
in evidence, it appears that thereupon the regbtered owners of
the vessel were "James Austin Harley, and John Hariey." The
transfers of the shares of James John Harley, in the five other
ships, were made in a similar manner, and the same questions
arise as to each vessel. *
The Master has by his order declared that the said ships " were
not, nor was part thereof, duly or lawfully seized by the Sherifi^,
nor 'were they lawfully assigned to Edward Scott,' but continued
partnership property." It is very unsatisfactory, and leads to much
difficulty^ when the facts are so inaccurately investigated, that the
Master, the Counsel, and the solicitors on both sides, were unac-
quainted with the contents of the written documents, and the facts
of the case when it was decided by the Master. There was no
assignment by the Sheriff to Edward Scott, although he is the
appellant. The bill of sale from the Sheriff was to John Harley,
the plaintiff in the execution, and not to Edward Scott. Edward
Scott, however, had purchased in trust for John Harley.
The Master appears to have held that, as there was no actual seizure
of the shares of James John Harley in the vessels, and as the Sheriff
did not go on board each vessel, and make what could only have been
a formal seizure of the thirty-^wo sixty-fourth parts or shares of the
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said James John Harley, that evtrything done by the Sheriff is actu-
ally null and void ; and that all the entries made under the Merchant
Shipping Acts are null and Toid ; and that although John Harlej was
registered as owner of the tUrty-two sixty-fourth shares, he was not
an owner. I do not Uiink the question decided by the Master is open
on the present petition, under the 15th section. The Sheriff entered
into an express covenant, by the bills of sale, that he had power
to transfer. If he has improperly sold, he might be liable to
an action, at suit of the defendant in the execution ; and to an
action on the covenant, at suit of John Harley. I think there is
ground for saying that, if the sale is sought to be impeached,
it should have been in a suit of the said Elisa Henrietta Harley,
as personal representative of James John Harley, to which the
Sheriff should be a respondent; and seeking that John Harley
shonld re-transfer the shares, and thus have the registry set right
The Master has in effect nullified the registry, in a collateral
proceeding for the taking of a partnership account, to which I
have adverted in the commencement of my judgment; and how
the registry, which it was the policy of the Merchant Shipping
Acts should be the evidence of the title, Is to be set right in
the present suit, and under the Master's decision, has not been
suggested.
Supposing, however, the question decided by the Master to be
open for consideration in this suit, the first question which arises
is, whether the Sheriff was bound to go on board each vessel and
seise (not the ship, as he had no right to sebe the entire ship, hot)
thirty-two sixty-fourth undivided parts of the ship the property of the
defendant in the execution. It has not been suggested in what way a
Sheriff is to seise thirty-two sixty-fourth undivided parts of a ship. If
we were to answer the question upon the principles of common sense,
it would be, as laid down in Coilier on Partnership^ 2nd ed., p. 660,
that, ^ under a judgment against one partner, the way in which the
Sheriff executes the writ in practice is, by making a bill of sale of
the actual interest.'' That was done in the present case. A part*
owner of a ship is not necessarily a partner. He is a tenant in
common with the other part-owners : Abbott on Shipping ^ 10th ed.,
Judgmtmt,
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464
CHANCERY REPORTS.
1860.
Rolls.
HABLET
V.
HARLET.
Judgment,
p. 66 ; but the shares of a part-owner are not transmissible by deliv-
ery ; and the same principle applies as laid down by Mr. Collier, If
the thirty-two sixty-fourth shares of the defendant in the execution
were capable of transfer by delivery by the Sheriff, there might
be ground for contending that there should have been an actual
seizure ; but the question is, whether it is necessary for a Sheriff
actually to seize that which is not capable of transfer by delivery,
but must be transferred in a particular manner provided by statute?
That a distinction exists between property which passes by delivery,
and property such as a chattel real, which does not, is adverted
to by Chief Baron Pollock, in Playfair v. Musgrove (a). His Lord-
ship said : — *' I think it is quite clear that the term remains in the
original lessee until an actual assignment by the Sheriff; and I can-
not at all accede to the suggestion in argument that, on the seizare
of a term of years, the term becomes vested in the Sheriff until he
executes an assignment of it to the purchaser. It may be that
things which pass by delivery are, for some puqposes, vested in
the Sheriff by the act of seizure; but, in the case of chattels
real, it is iot so.**
In the case of Doe v. Jones (6), it appeared that a lease was
taken in execution; that is, what represented the property was
taken in execution — just as the original ship registers, which
were lodged with the ' Sheriff in the present case, represented
the shares in the ship. The Sheriff, in the case of Doe v. Joneiy
sdd to the execution creditors ; but he executed no assignment of
the term to the purchasers. It was held that the estate remained
in the debtor, and that he could ' recover back the premises in an
ejectment. There are cases referred to in Doe v. Jones^ which
appear to establish that an actual seizure of the lands held under
a chattel lease is not necessary; but that the delivery of the
fieri facials to the Sheriff gives him a power to sell the term.
At all events, a seizure of the lease itself is sufficient. In the
case of Doe v. Dovston (c), it appears that it was the lease which
was taken in execution. In the case of Doe v. Browne {d), it
(a) 14 M, & W. 245.
(c) IB. & Aid. 231.
(6) 9 M. & W. 372.
(cO 4 B. & Aid. 243.
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Appears also that it was the lease which was taken in execution.
It is not at all clear that it is even necessary to seize the lease.
In the case of Coleman v. Rawlinson (a), an ejectment was brought
for the recovery of a term, by the assignee of the Sheriff, under
a writ of execution. The judgment and assignment having been
proved, Counsel for the defendants objected that there was no
proof of an actual seizure of the lease pf the property. Mr.
Justice WUles said, *' that is unnecessary ; the assignment is suffi-
cient evidence of the seizure. The Sheriif under ihefi.fa, could
not enter on the land; he could only seize the lease; and that
need not be seized to give validity to an assignment."
It appears, from that case, that it is not necessary for the
Sheriff to seize a lease, or enter on the lands ; and it is sufficient
for the Sheriff, he having acquired a power of sale by the delivery
of the ^fieri faciiu, to execute the assignment, without any seizure
whatever; but, if the seizure of a lease is necessary, it is only
a constructive seizure of the chattel real: and, I think, where,
under the Merchant Shipping Act (the sections of which I shall
just now refer to), the transfer of a ship, or shares therein, is
to be in writing, and recorded as thereby directed, that it was
not necessary for the Sheriff to go on board the vessels ; but
that, as the original registers, which established the title of the
defendant in the execution to the ^ares, were lodged with the
Sheriff, the Registrar of the port of Cork was justified in regis-
tering the right of the Sheriff under the execution, so as to enable
him 'Under the Act to execute a bill of sale to the purchaser under
the execution ; which bill of sale was duly executed and registered.
I have no doubt that, if inquiry was made, it would turn out that
the course adopted in the port of Cork in this case was in confor-
mity with the course adopted in the principal English seaports.
With respect to the Merchant Shipping Acts, there is no express
clause authorising a Sheriff to sell shares in a ship. Mr. Dowdes-
welly in his work on these Acts (page 39), states: — ''A conveyance
by bill of sale is not, however, the only means by which the regis-
tered owner may be divested of his property. The title to a ship.
1860.
RoUs.
HARLET
V.
HARLBT.
Judgment,
(a) 1 F. & Fin. 330.
VOL. 11.
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466
CHANCERY REPORTS.
1860.
Rolls.
HARLEY
V.
HARLET.
Judgment,
like that to any other chattel, may be transmitted. Thus a ship
may be seized under an execution, or pass to assignees under a bank-
ruptcy or insolvency, or to her husband upon the decease of a female
owner ; and upon death it will pass to the personal representatives."
Mr. DowdesU^ell adds : — '' In the case of an execution, a bill of sale
(t. e.y of a ship) would be executed by the Sheriff, which is the
ordinary mode of executing the power of sale vested in him.** The
58th section of the Act appears to use general words which would
embrace an execution. The 56th, and several other subsequent sec-
tions, relate to the transmission and transfer of ships and shares
therein. The terms of the Act previously in force (8 & 9 Ft^,
c. 89, 8. 38) prevented the Court of Chancery from interfering in
any way where the transferree named in ai bill of sale had got it
registered and indorsed on the certificate, even though this may have
been obtained without paying the purchase-money, or by means ai
variance with the agreement between the parties. Though the ship
was purchased with partnership moneys, and it had been treated
as partnership property, the Court of Chancery could not interfere
on behalf of partners whose names did not appear on the register.
Mr. Dowdeswell refers to the cases at p. 277 of his work. There is,
however, some doubt whether those cases apply to the present Mer-
chant Shipping Act, as the 57th section of that Act diifers in some
important particulars from the sections of the former Acts, on the
construction of which those cases were decided. I cannot, however,
come to the conclusion which the Master has, that, in a petition to
take partnership accounts, under the 15th section of the statute, the
Court is to treat as absolutely null and void the title on the register,
without any substantive proceedings to set the register right, if it be
erroneous. I do not think that the questions which the Master has
decided are open on the present petition ; but I am also of opinion
that, if they were open, the Master's decision on the facts in issue
and in proof is erroneous. I shall, therefore, set aside the order of
the'Master, so far as it declares that the shares of the defendant in the
execution were not lawfully assigned ; and I shall declare that the
said shares were lawfully assigned by the Sheriff; and I shall remit
the case back to the Master, with such declaration.
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An affidavit was sent to the Court, made by the solicitors for Eh'za
Henrietta Harlej, filed the 19th of October, verifying several copies
of doeumenU from the registry in Cork. These documents are, I
believe, only duplicates of those I have referred to. I shall not,
however, enter them on the order at this stage of the proceedings.
The case oaght to have been fully investigated before the case was
heard by the Master. If it had been, it is not improbable that he
might have formed a different opinion.
The Mastbr of the Rolls observed, on a subsequent day, that
it appeared, from copies produced from the registry, that, on the 6th
of April 1857» John Harley assigned to Edward Scott some of the
shares which had been assigned by the Sheri£f to John Harley ;
which might account for the appeal being by Edward Scott.
1860.
RolU.
Judgment.
Ex parte SPEAR, in tlie Matter of the DUNDALK
AND ENNISKILLEN RAILWAY COMPANY.
The petition was presented under the Railway Act (Ireland) 1861.
The Railway Company went into possession of certain lands of the
petitioner, on the 27th of June 1859. On the 8th of March I860,
the arbitrator awarded £160 to the petitioner, with interest from the
27th of June 1869* The petitioner traversed, and obtained a ver-
dict for £260, on the 5th of July 1860. The Railway Company, on
the 1st of November 1860, lodged in Court £250, the amount of the
verdict, and £2. 8s. 9d. interest at £4 per cent., from the date of it.
The petitioner claimed £5 per cent, interest on the amount of the
verdict, from the 27th of June 1869. The facts of the case, and the
sections of the Act on which the question depended, are fully stated
in his Honor's judgment.
Nov. 22, 28.
1861.
Jan. 21.
A person who
trayeraes the
award of the
arbitrator, un-
der the Bail-
ways Act (Ire-
land) 1851, is
not entitled,
under the 22nd
section of the
Act, to inter-
est at £5 per
cent, on the
amount of the
damages
awarded by
the yerdict,
Arom the time
when the Rail,
way Company
went into pos-
session of the
lands.
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468
CHANCERY REPORTS.
1860.
Rolh.
Argument.
1861.
Jim. 21.
Judgment.
Mr. 7. K. Lowry^ for the petitioner, contended that he was entitled^
under the 22nd and 27th sections, to interest at £5 per cent, from
the time the Company went into possession.
Mr. W, Boyd^ for the Company, contended that the 22nd section,
which gave interest, applied only to money lodged in pursuance of
the certificate of the arbitrator. Under the 27 th section, the amount
awarded by the verdict is to be taken "in lieu of the moneys payable
by the certificate ; " that is, in lieu of the amount awarded by the
certificate, and the interest on it. The petitioner was, therefore, only
entitled to interest at £4 per cent, on the amount of the verdict, from
its date, under the 3 & 4 Ftc, c. 106, s. 26.
The Master of the Rolls.
In this case the petition has been presented by Hugh Spear. The
petition prays that the Accountant-Greneral do draw in favour of the
said Hugh Spear, or his attorney lawfully authorised, for the sum
of £262. 8s. 9d. cash, standing to the credit of this matter, £250
thereof being the amount of compensation awarded to the said peti-
tioner, in respect of certain lands in the petition mentioned, the pro-
perty of the petitioner, and which was ascertained by a verdict of a
jury of the county of Monaghan to be the sum payable to the peti-
tioner on a traverse for damages entered by the petitioner ; and the
petitioner claims the balance in Court, in part payment of interest on
the £260, at the rate of £5 per cent., from the 27th of June 1869,
being the day on which the Company took possession of the said
lands, until the 3rd of November 1860, when the said sum of £262.
8s. 9d. was lodged to the credit of this matter by the said Railwi^
Company ; and the petition further prays that the said Company
may pay to the petitioner the balance of the said interest, together
with his costs.
The facts of the case are as follow : — William Paul Prendergast,
having been appointed arbitrator in this matter under the provisions
of the Railways Act (Ireland) 1851,* made his draft award on the
6th of October 1868. The said Railway Company, pursuant to the
• 14 & 15 Fie., c. 70.
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CHANCERY REPORTS. 469
powers in said Act, section 22, took compulBorj possession of the 1861.
said lands on the 27th of June 1859) and have since continued in s.-^^ '
possession, for the purposes of the Railway. The arbitrator made p, ^|^ s,
his final award on the 28th of September 1859, whereby he awarded railway.
to the lessee of the said lands (t. «., the petitioner) £16. 14s. Od. for Judgmenu
the value of the said lessee's interest in the lands, and the further
sum of £133. 6s. Od. for compensation to the said lessee, by reason of
seTerance and other consequential damages, making together £150.
The petitioner, under the provisions of the Act, required the Com-
pany to deliver to him a certificate stating the amount of compensa-
tion to which he was entitled under the award. The petitioner's
solicitor was furnished by the said Company, on the 8th of March
1860, with the said certificate, by which it was certified that the
petitioner was entitled to be paid the said two sums of £16. 14s. Od.
and £133. 6s. Od., making together the sum of £150, together with
interest on the said sum of £150, at the rate of £5 per cent, pei^
annum, from the 27th of June 1859 until payment of the said sum,
or lodgment of the same in Bank, pursuant to the provisions of the
said Act.
The petitioner, being dissatisfied with the amount in such certifi-
cate, entered a traverse for damages, under the 26th section of the
said Act ; and the traverse having been tried at the Assizes for the
county of Monaghan, on the 5th of July I860, the jury found a
"verdict for the traverser in the sum of £250, made up in the
following manner ; viz., value of land taken by Railway Com-
pany, £55 ; to replace office-houses, £45 ; severance and conse-
quential damages, £150." The above are the terms of the verdict,
as certified by the Clerk of the Crown for the county of Monaghan.
The Company, pursuant to a deposit-warrant, dated the Ist of
November I860, paid into the Bank of Ireland, to the credit of
this matter, £252. 88. 9d. ; but the said sum is insufficient for pay-
ment of the said verdict, with interest thereon at £5 per cent, from
the 27th of June 1859, the day on which the Company entered into
possession of the said lands. The sum of £252. 8s. 9d., lodged to
the credit of this matter, consisted of the £250 found by the verdict,
and £2. 8s. 9d. interest thereon at £4 per cent, from the date of the
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470
CHANCERY REPORTS.
1861.
RolU,
JudgmmU*
verdict to the lodgment in Court. The £4 per cent, intereat was
lodged, not under the Railways Act (Ireland) 1851, but as interest,
under tbe 3 & 4 Vic, c. 105, s. 26.
An affidavit has been made bj the apprentice of the petitioner's
solicitor, in which he states that he attended personally at the trial
of the traverse in this matter, at the last Monaghan Assizes ; and that
at the close of the case, and when the learned Judge had charged
the jury, the traverser's Counsel proposed that the amount of inter-
est on the purchase-money should be added to the sum to be found
by them, and included in their verdict ; but that the Company's
Counsel and solicitor objected to the same, upon the ground that
the jury had nothing to do with tfie interest, which was provided
for by the Act of Parliament ; and the learned Judge having taken
that view, he declined to direct the jury to include it in their ver-
dict, and it formed no part thereof^ That the jury did not include
the interest in their verdict appears on the certificate of the finding
of the jury, signed by the Clerk of the Crown.
The question of Law which arises in the case depends on the oon-
stmction to be put on the 22nd and 26th sections of the said Act
(14 & 15 Ftc, c. 70). The petitioner's Counsel contend that they
are entitled to interest at £5 per cent, on the amount of the verdict
for £250, which verdict was found on the 4th of July 1860, from
the 27th of June 1859) the day on which the Company took posses-
sion, to the 3rd of ^November 1860, when the amount of the verdict,
with £4 per cent, interest from its date, was lodged in Court. The
Company's Counsel contend that the verdict does not bear any
interest under the said Act, but that it does bear interest at £4
per cent., under the 3 & 4 Fte., c. 105, s. 26. from the date of su<^
verdict, viz., from the 5th of July I860 to the 3rd of November
1860, when the amount of the verdict was lodged in Court ; such
verdict having the effect of a judgment, under the 27th section of
the said Act of the 14 & 15 Ftc, c. 7, the Railways Act (Ireland)
1851.
The 22nd section of the Railways Act (Ireland) 1851 gives
power to a Company to whom that Act extends to enter upon any
lands, for the purposes of their works, after the arbitrator shall have
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CHANCERY REPORTS. 471
framed his draft award, upon depositing, in the Bank of Ireland, 1861.
such sum as the arbitrator maj certify to be, in his opinion, the ^, ■ ^ ' ,^
proper sum to be so deposited ; and then follows this proviso : " Pro- u. ^j^ g,
vided that the Company shall, where they enter upon any lands, by railway.
virtue of this present provision, pay interest at the rate of £5 per Judgment.
cent, per annum tqnm the purchase and compemation'tnoney pay^
able by them in respect of any lands so entered tqfon, from the
time of their entry untU the payment of such money and interest
to the party entitled thereto ; or where, under the provisions of this
Act, such purchase or compensation-money is required to be paid
into the said Bank, then until the same, with such interest, is paid
into such Bank accordingly ; and where, under this provision, inter-
est is payable on any purchase or compensation-money, the certi-
ficate to be delivered by the Company, in respect thereof, shall
specify that interest is so payable ; and the same shall be recover-
able in like manner as the principal money mentioned in such
certificate."
It is admitted that, under the provisions of that section, interest
at £6 per cent would have been payable upon the sum of £150,
certified by the arbitrator to be the proper sum to deposit, from the
period of the entry of the Company on the 27th of June 1859| if
there had been no traverse. But in considering the question which
arises on this petition, as to whether the Court has power to make
an order, it is to be kept in mind that the principal sum, together
with the interest, awarded by such certificate, is to be recovered by
entering judgment on the certificate in the Court of Queen's Bench,
under the 16th section of the statute. The question then arises,
whether the sum awarded by the jury, under the 26th section, to
which I shall now refer, is to be considered as *' the purchase or
compensation-money payable by the Company in respect of any
lands so entered upon ; ** and if so, whether such interest is re-
coverable by the present petition ?
By the 26th section it is enacted that, if any party named in any
certificate issued under the provisions of the said Act, of the amount
of '^ the price or compensation " ascertained by any award under
the Act, shall be dissatisfied with the amount in such certificate
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472
CHANCERY REPORTS.
1861.
RolU.
Judgment.
certified to be payable, it shall be lawful for such party to have a
traverse for damages entered in the Crown-book, in respect of such
claim ; and thereupon such traverse shall be tried in like manner,
and like proceedings shall be had, and subject to like provisions, so
far as the same can be applied, as in the case of traverses entered
for damages under the Grand Jury Acts. The 27th section pro-
vides that the verdict ** shall have the efiect of a judgment at Law,
obtained in the Court of Queen's Bench in Ireland, against the
Company, and may be enforced, by like remedies, against the Com-
pany, as in the case of a judgment at Law, by all persons interested
therein ; and in each case where a certificate shall have been deli-
vered, such damages shall be taken and recovered in lieu of the
moneys expressed to be payable by the certificate, and which shall,
on the payment of the damages, and any costs payable by the Com-
pany, be delivered up to the said Company, and such receipt^ for
damages shall be given as is hereinbefore provided in cases of pay-
ment of moneys on such certificates as aforesaid." What follows
does not appear to give jurisdiction to the Court of Chancery, on
petition, where the amount of the damages is lodged in Court.
The provision is as follows : — ^' And where such damages shall be
given in respect of any land, the amount of the price or compensa-
tion in respect of which, as ascertained by an award under this
Act, shall have been paid into Court, then, if the amount of such
damages shall be less than the amount paid into Court, the Com-
pany shall, on a summary application by petition, be entitled to
receive the difference between the amount of such damages and the
amount of the sum paid into Court. But if the amount of such
damages shall exceed the amount of the moneys paid into Court,
then the difference between the amount paid in and the damages
shall, at the costs of the Company, be paid into Court; and the pay-
ment of such difference into Court, and the payment of any costs
payable by the Company in respect of such traverse, shall be a
good discharge to the Company, on any such verdict, in the nature of
a judgment as aforesaid."
The difficulty in the case is this ; where there is no traverse for
damages, the amount of the certificate to be given by the Company
' to the party whose land is taken is to be recovered in the manner
I
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CHANCERY REPORTS. 478
pointed oat by the 15th section of the said Act, the Railways (Ire- 1861.
land) Act 1861, t. e^ by entering up judgment in the Court of
Queen's Bench against the Company^ in the manner pointed out
by that section. The mode of recovering the amount of the verdict
(which is to have the effect of a judgment) is provided for by the Jwdgmmu.
27th section, and is to be by proceeding in the Queen's Bench.
The remedy by petition is only in the cases mentioned at the close
of the 27th section ; that is, first, if the damages recovered shall be
less than the amount paid into Court, the Company, by petition,
are entitled to receive the difference between the amount of such
damages and the amount of the sum paid into Court. That is not
the present ease. Then follows the provision where the amount of
the damages shall exceed the amount of the moneys paid into Court
(t. tf*, paid in under the certificate of the arbitrator). That is the
present case. In such case the said 27th section provides that *^the
difference between the amount paid in (t • e^ under the certificate)
and the damages shall, at the costs of the Company, be paid into
Coort" The Company have done more than is thereby required,
for they have lodged the entire damages in Court, with interest at
£4 per cent, from the date of the verdict. The section then pro-
vides that ^'the payment of such difference into Court, and the
payment of any costs payable by the Company in respect of such
traverse, shall be a good discharge to the Company, on any such ver-
diet, io the nature of a judgment as aforesaid.** The whole damages
have been paid into Court
I do not, therefore, see what jurisdiction the Court has to decide
that a further sum, in addition to the verdict (which is in effect a
judgment)^ is to be paid into Court.
The question raised in this case has been overlooked by the
Legislature ; and I do not see how I can give relief to the peti-
tioner. I offer no opinion whether the interest can be recovered
by any application to the Court of Queen's Bench ; but the statute
does not give jurisdiction to this Court to add to the verdict, or to com-
pel the payment of any sum not recoverable in the Court of Queen's
Bench by proceedings on the verdict. I shall, therefore, make no
rule on the petition. Each party will abide their own costs.
VOL. 11. 60
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474 CHANCERY REPORTS.
1860.
R9IU,
THORNTON v. THORNTON.
Nov. 20.
1861.
Jolt. 14, 18.
A testafor, Georoe Thornton the elder, who was a tanner and soap and
having three
8on8, A, B candle manufacturer, made his will, bearing date the 7th of August
certain pro- 1853, by which he devised to his son William Thornton certain
W^ other ' leasehold premises ; " And as to all the remainder of the leasehold
M^r^y,toge- Property hereinbefore mentioned, and all buildings and improve-
th*' todt-in^ ments thereon, and the stock-in-trade therein, together with all
trade which ^y^^ stock-in-trade which shaU be in the premises so bequeathed
should be in r ^
the premises, to my son WiUiam, and all goods, chattels and effects whatsoever,
toBand C. as -^ ® *
tenants in money and securities for money, and all property of every descrip-
conunon ; and
in case his tion, whether real, freehold or personal, of what nature or kind
either of them, soever, or wheresoever situated, and not hereby bequeathed as afore-
withont lear- ^^^f which I shall die seised, possessed of, or in any manner entitled
^e himsiir- ^» subject to the payment of my just debts, testamentary and funeral
d^^ted ^ t ^^^^^ ^^^ ^ ^^ legacies hereinafter bequeathed, and which I
the share of hereby expressly charge thereon, I leave and bequeath the same
dying, in the unto my sons Edward Thornton and Greorge Thornton, share and
premises, and
m the stock-in- share alike, to be held and enjoyed by them as tenants in common,
trade which
should be and not as joint tenants ; and in case my said sons Edward and
time of meh George, or either of them, shall die without leaving lawful issue
go to 'and he ^^ surviving, then and in such case it is my will, and I order
and sbare^^ ^^^ direct, that the share of such son so dying, in the premises so
nch of *^^ comprised in said respective leases, and in the buildings and improve-
*!^^i?^?".? ments erected and made thereon, and in the stock-in-trade which
shonld be then '
living, as te- ghall be therein at the time of such decease, shall go to and be
Hants in com- °
mon. B and divided, share and share alike, between such of my said sons as
G carried on
the trade after shall be then living, to be held and enjoyed by them as tenants
the testator's
death; and B
died without issue, leaving A and C sorviTing.
Held, that no case of election arose, there beixig no condition attached to the
bequest, that the stock on the premises, at the death of either of the sons, should
be subject to the bequest. A, therefore, is only entitled to a moiety of the stock-in-
trade at the testator's death.
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CHANCERY REPORTS. 475
in common, and not as joint tenants; and if but one such son 1860.
Rolls.
shall be then living, then the entire to go and be held and enjoyed n_v — -^
by such one only surviving son : " and, after bequeathing certain ^
legacies to his daughters, the testator desired *Hhat the working thobnton.
capital of my said sons shall not be diminished or infringed upon suuemenu
too suddenly by such legacies, or either of them, .being promptly
demanded.**
The testator died on the 8th of May 1854, leaving three sons,
George, Edward and William, and several daughters. The business
was carried on after his death, by his sons Greorge and Edward.
George Thornton the younger died unmarried and without issue,
on the 9th of November 1856.
The petition was filed by WiUiam Thornton, for the adminb-
tration of the real and personal estate of the testator. The matter
was referred to Master Brooke, under the 15th section of the Court
of Chancery (Ireland) Regulation Act 1850. The Master ascer-
tained the stock-in-trade of the testator, at the time of his death,
to amount in value to £297 ; and he declared, by his decretal order,
that the petitioner was entitled under the will to one-fourth of that
sum (£74. 5s.) ; and he declared that he was not entitled to any
share or interest in the stock-in-trade which existed on the premises,
which did not form part of the stock-in-trade of the said testator at
the time of his death.
The petitioner appealed, on the ground that the stock-in-trade
which existed on the premises at the death of George Thornton
the younger was subject to the limitation over on his death without
issue, and became on that event divisible between the petitioner
and the respondent Edward Thornton.
Mr. Serjeant Sullivan and Mr. C H. Woodroffe^ for the petitioner, Arg^Mmu.
contended that a case of election arose. If Greorge Thornton accepted
the benefit of the bequest, he was bound to comply with the condi-
tion that the stock on the premises, at his death without issue,
should be subject to the limitation over : Messenger v. Andrews (a) ;
Earl of Northumberland v. Marquis of Granby (b). The testator
(a) 4 Bum. 478. (6) Ambl. 54 ; S. C, 1 Eden, 489.
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476 CHANCERY EEPOBTS.
1860. expressly directed that "the stock-in-trade which shall be thereui
>^ y ' / at the time of the decease of either of his sons sboold go
THOBNTON ^^^ ^^^ ^^^ "mv" is not used as in the case of UiHeke v-
THOBRTOV. Peters (a), which is relied on by the respondents.
Argument.
Mr. Brewetery Mr. Berkeley^ Mr. Ckaiterton and Mr. J^fue^ for
the respondents.
In order to raise a case of election, the intention of the testator
to bequeath proper^ not his own most be clearly and nnequivoeally
expressed. No such intention is expressed in this case: Lard
Randeiiff v. Perkins (b) ; Dittos v. Parker (c) ; Dummer v. Pa-
cker {d)\ Cosby v. Lard Asktawnf^e); UsHehe t. PeUrs(f}\
1 Jarman on WiUs^ pp. 378-9.
The Mastbb of ths Bolls*
1861
Jan. 14. ^ motion has been made on behalf of the petitioner, by way of
Judgmem. ^^pp^ £^q^ ^^ decretal order of William Brooke, Esq., the Master
in this matter, which order bears date Ae 10th of May, and was
signed on the 7th of August 1860.
This is a suit for the administration of the assets of Ckorge
Thornton the elder, and to have the trusts of his will carried into
execution.
The case was referred to the Master, under the 15th section of
the statute. It is declared by the said ordei^ that the petitioner
is not entitled, under the will of the said George Thornton the
elder, ^'to any share or interest in the stock-in-trade which existed
on the premises (by the said will bequeathed to ^ward Thornton
and G^rge Thornton the younger), which did not form part of the
stock-in-trade of the said testator at the time of his death ;** and it
was by the said order further declared, that the said petitioner was
"entitled, undw the said will, to the value of one-fourth part or
share of the said stock-in-trade, in the second schedule set forth;"
and it was further declared that the ralue of such one-fourth was
(a) 4 K. & J. 458. (6) 6 Dow. P. C. 149.
(e) 1 Swanst. 8S. (ji) S Sim. 85.
(0 10 Ir, Ch. Bep. 219. (f) UU ntpra.
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CHANCERY REPORTS. 477
£74* Sb^ and the respondent was ordered to pay the said sum 1861.
to the petitioner within one week, and also to pay the costs of the s— ^ ^
THOBNTON
The second schedule to the order is headed thus : — ** Second thobnton.
schedulCi setting forth the particulars of the stock-in-trade of the judamtnt.
said testator, on the premises at the time of his death, and which
remained there up to the time of the death of his son George
Thornton the younger.**
The particulars of such stock-in-trade (or, more properly speak-
ing, of the plant, together with their value) are then set forth,
the ralue of the whole being £297; one-fourth of which sum
is £74. 5s., which the respondent is by the order directed to pay
to the petitioner. This said one-fourth \k the one-half of the
moiety of the stock-in-trade bequeathed to George Thornton the
younger.
The notice of motion on behalf of the petitioner, by way of
appeal against tl^ said order, seeks to set aside so much of the order
as contains the declarations which I have stated ; and that, in lieu
of such declarations, *' It may be ordered and declared that, according
to the true construction of the said will, the stock-in-trade on the
premises so bequeathed to the said Edward and Greorge Thornton
the younger, and which e](isted therein at the time of the death
of George Thornton the younger, was equally aieoted by the
limitation oyer, on the death without issue of the said Gkorge
Thornton the younger, as the premises themselTes; and that it
may also be declared that, on the death of the said George Thorn-
ton the younger without issue, one moiety of all the stock«in«trade
which was, at the time of the death of the tesuter^s said son
George Thornton the younger, on the premises so bequeathed by
the said will to said Edward and George Thornton the younger,
became divisible between the petitioner and the respondent, in
equal shares.**
The effect of that declaration which I am required to make
is, that the hides, soap and candles, which Edward and George
Thornton had the absolute power to dispose of, should, so fiar
as same were not disposed of^ pass under the limitation over.
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478 CHANCERY REPORTS.
1861. The question whether the decretal order of the Master was
right, and whether the Court is bound to make the declaration
THOHNTON
sought bj the motion, depends on the construction , to be put
THORNTON, on the will of the testator, Oeorge Thornton the elder. The
Judgmnu. '^^^ testator carried on the trade and business of tanner and
soap and candle manufacturer. The will bea^ date the 7th of
August 1853.
The testator recites five leases of premises in the will mentioned,
' which were Tested in the testator, and held for liyes or long terms
of years ; and he recites a sixth lease of premises in the will men-
tioned, bearing date the 13th of January 1853, which he states that
his son William (the petitioner) had procured to be executed to
himself, and which the said William had refused to assign to the
testator, which had displeased him much ; and that, in consequence of
such refusal, it was the testator's intention not to provide for the
said William to the extent he had contemplated ; and, after such
recitals, the testator devised to his said son William the premises
demised by the said lease of the 13th of January 1853, with the
stores and other improvements erected and made thereon ; and the
will then proceeds in these words : — ^' And as to all the remainder
of the leasehold property hereinbefore mentioned, and all buildings
and improvements thereon, and the ttoek-in-trcide therein^ together
with all the stock-in-trade which shall be on the premises so
bequeathed to my son WiUiam, and all goods, chattels and effects
whatsoever, moneys and securities for money, and all property of
every description, whether real, freehold or personal, of what nature
or kind soever, or wheresoever situate, and not hereby bequeathed as j
aforesaid, which I shall die seised, possessed of or in any manner
entitled to^ subject to the payment of my just debts, testamenUry
and funeral expenses, and to the legacies hereinafter bequeathed, and
which I hereby expressly charge thereon, I leave and bequeath
the same unto my sons Edward Thornton and Greorge Thornton,
share and share alike, to be held and enjoyed by them as tenants in
common, and not as joint tenants." Now so far as I have read, of
course, the term '< stock-in-trade therein " applied to the stock-in-
trade on the premises at the death of the testator. The will then
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CHANCERY REPORTS. 479
proceeds thus: — ^' And in case my said sons Edward and George, 1861.
RolU.
or either of them, shall die without leaving lawful issue him sur- ^— y /
Tiving, then and in such case it is my will, and I order and direct,
that the share of such son, so dying, in the premises so comprised thobnton.
in said respective leases, and in the buildings and improvements Judgment.
erected and made thereon, and in the siock-in-irade which shall be
therein at the time of such decease, shall go to and be divided, share
and share alike, between such of my said sons as shall be then
living, to be held and enjoyed by them as tenants in common, and
not as joint tenants ; and if but one such son shall be then living,
then the entire to go to and be held and enjoyed by such one only
surviving son." The testator then bequeathed legacies to his
daughters, charged on the property devised to Edward and George
Thornton ; and the testator directed that the said legacies should
not be called in without twelve months' notice, it being the testator's
*' desire that the working capital of my said sons should not be
diminished or infringed upon too suddenly by such legacies, or
either of them, being promptly demanded."
The testator appointed William Long and John Clarke his
executors. The testator, George Thornton the elder, died, I believe,
shortly after the date of his will, but Counsel did not state the date.
Edward Thornton and George Thornton survived their father, and
George Thornton the younger died unmarried and without issue, .
on the 19th of November 1856. It is said that George Thornton
the younger made a will, but it has not been proved.
The question which arises is, what is the meaning of the words
'^ the stock-in-trade which shall be therein," in the clause containing
the devise over, in the event of Edward or George dying without
leaving issue surviving?
The petitioner alleges that this devise over included not only the
stock-in-trade which was the property of the testator, and which
was still in existence at the death of George Thornton the younger,
but that the bequest over passed what was not the property of the
testator, t. e., the stock-in-trade which had been purchased or manu-
factured by George Thornton the younger, or Edward Thornton,
and which had no existence at the testator's death.
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480 CHANCERY REPORTS.
1861. The respondent contends, and the Master has decided, thai the
« V ^ words in the devise over, of the ''stock-in-trade which shall he
therein," means, according to the heading of the second schedule to
THomiTON. the order, " the stock-in-trade of the said testator on the premises
/udrmmt: ^ ^^^ ^^^ ^^ ^ death, and which remained there np to the time
of the death of his son George Thornton.''
It is a well settled rule of constmotion that, in order to raise a
case of election, the inten^n, as manifiMted by the will itself, most
be clear and decisive ; for if the testator's expressions will admit of
being restricted to property belonging to or disposable bj him, the
inference will be, that he did not mean them to apply to that over
which he kad.no disposing power : Jarman on WiUs^ 2nd ed.,
voL 1, p. 879.
I do not think that thia case involves any question of election;
but I apprehfflid a testator is not to be assumed to devise proper^
which does not belong to him.
In Usiieke v. Peters (a), Yioe-Chanoellor Wood stated, ** Prima
facte the Court presumes, in all cases, that the testator has no
intention to dilBpose, by his will, of lands of which he has not power
so to dispose." In another passage of the judgment it is stated,
^ The general rule of Law is, that in sitting down to construe a
will you are to assume, prima faeie^ that the testator did not intend
lo dispose of anything which was not his own to dispose of; and
the circumstance of his having disclaimed such an intention will
not make any di£forence, so £ur as the rule of construction is con-
cemed." The cases on this subject are referred to in Coeby v. Ask-
iawn{i)f and in Jarman on Wtlb^ 2nd ed.,. voL 1, pp. 379^ 380.
According to the argument of the petitioner's Counsel, if the
share of G^rge Thornton the younger, under his father's wiU, of
the stock-in-trade, was, at his father's death, 6t the value of £1000,
and, by the skitt and exertions of the said Greorge Thornton the
younger, his share in the stock-in-trade, at the time of his death,
was of the value of £100,000, the petitioner would be entitled to
one-balf of that sum. If G^rge Thornton the younger had become
a bankrupt, according to the argument of the petitioner's Counsel,
(a) 4Kaj4J.458. (6) lOLr. Chan. Bep. 237* 22B» 2».
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CHANCERY REPORTS. 481
his assignees woald have had no right to the stock-in-trade. If 1861.
George Thornton the younger had retired from business, and sold <— -v '^'
THORNTON
all the stock-in-trade, including that which he had himself created,
would the money for which he sold all his share in the stock- Thornton.
in-trade have been affected with a trust in favour of the Judgment.
petitioner, in the event of George Thornton the younger dying
without leaving issue him surviving? If so, he could not have
applied any part of the fund in advancing a child, because such
child might die in his lifetime.
The ground on which it is sought to sustain the appeal is, that
the bequest was on condition that the stock-in-trade which should
be on the premises at the death of George Thornton the younger
should go to the testator's other sons.
I do not think that such is the construction of the bequest ; and,
on the whole, I am of opinion that the Master was right in holding
that the words '* stock-in-trade therein," in the first bequest, and
** stock-in-trade therein," in the bequest over, should have the same
construction put upon them; and that the testator is not to be
considered as having, in the bequest over, disposed of property not
his own.
A question might have been raised, upon which, however, it is
unnecessary to decide, as it has not been argued or suggested before
the Master or before me. It is clear that Edward Thornton and George
Thornton the younger were entitled to dispose of the stock-in-trade
which was on the premises at the death of the testator, t. e., the hides,
soap, candles, &c., and also the stock-in-trade which should be there-
after on the premises. In case of a money fund, a bequest of what shall
remain or be'left at the decease of a prior legatee, or of what the
legatee is possessed of at the time of his death, or of what remains
undisposed of, and in many other cases of a similar nature, the
bequest over is void for uncertainty. Several of the cases are
referred to in Jarman on Wilis, 2nd ed., vol. 1, p. 298.* It
might be contended that stock-in-trade such as hides and soap and
candles would be subject to the same rule as a money fund, and for
* Holmes v. Godson (2 Jkrist, N. S., p. 382), and Barton ▼. Barton (3 Kay
and J., p. 512).
VOL.11. 61
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482 CHANCERY REPORTS.
1861. the same reasons.* Edward Thornton and George Thornton the
Rolls.
^ ^ ' younger were entitled to dispose of the entire stock-in-trade ; and if
THORNTON
^, SO, the devise over was in effect of the stock-in-trade which should
THOBNTON. \^ uudlsposcd of at the death of either, in case of his dying without
Judgment, leaving issue him surviving. The Master's decision gives the peti-
tioner a share of the value of the plant which was still in existence
at the death of George Thornton the younger ; but the petitioner's
argument is, that hides, soap, candles, &c., which Edward and
George had an absolute power to dispose of, if not disposed o^
passed under the devise over. It is difficult to understand this,
having regard to the authorities. All, however, that it is necessary
for me to decide is, that the declaration which the appellant seeks
by his notice should not be made.
I shall refuse the motion with costs.
• See Watkins v. Williams (3 M. & G., p.
1860.
f^f; ELLIOTT V. ELLIOTT.
Jan. 12.
A teatator be- Thomas Elliott made his will in 1833, by which he devised all
queathedtohis
four daughters his lands to trustees, in trust to permit and suffer his wife to have,
unmarried a,
snm of £2000 hold and enjoy, during her life, the house and lands of Rathcoage,
each, on their
day of mar- together with the plate, linen, &c., which should be at the testator's
cons^t of his decease in the said house, or on the said lands, for the special pur-
interest' by P^^ ^^^ ^^^ "^^^ should have a residence, '^ for and with all my
nfUQoe ™^the ^^^^rried children, in case it be desirable to them to remain at
^Tif^oneof Rathcoage." The will contained the following bequest :—" And
his said dangh- whereas I am now possessed of a sum nearly of £10,000 in the new
ters should die ^ ^ ^
without being
married* he desired the fortune and legacies of her so being the first to die to go to and
be divided equally among such of his married sons and daughters as might hare issue
at the death of such dying daughter. The four unmarrieid daughters survired the
testator ; and one of them died unmarried and without issue. — Heldt that her legacy
was divisible among the testator's sons and daughters who were married at the date
of the win, and Burriyed her, and had issue liying at the time of her death.
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483
and old £3^ per cent stock, and which I expect to add to, and have
four daughters unmarried, Julia, Maria, Jane and Harriet, to
each of them I purpose giving, as and for a marriage portion, a sum
of £2000 each : I leave and bequeath to my said trustees the said
£3^ per cent stock, ready money, debts, and rents due to the last
gale-day preceding my decease; and, in case the whole does not
amount to £10,000, to be hereafter disposed of, I direct my son
Charles to pay a sum of £1000, and my sons Samuel and Thomas
to pay £600 each, or more or less, in proportion, if necessary, as
may be wanted to make up their sisters' fortunes. I direct £2000,
part of the above £10,000, to be paid to Oliver Naylor, as and for
my daughter Mary's fortune, which Naylor requested me to hold,
and for which I paid £6 per cent., during pleasure. I leave to my
four daughters unmarried a sum of £2000 each, being part of the
residue of £10,000 ; and I desire they may receive, from the day of
my death, as and for the interest of their legacies, the interest due
and accruing out of the said £3^ per cent stock, as and for their
support and maintenance. I devise the said legacy or portion,
to each of my said daughters on their day of marriage, not sooner,
provided she marries with the consent and advice of my said trus-
tees ; and, if one of my said daughters die without being married, I
desire the fortune and legacy of her so being the first to die to go
to, and be divided equally amongst, such of my married sons and
daughters as may have issue living at the death of such dying
daughter; and, in case one other or more daughters die unmarried,
her or their fortune or legacy to go to, and be divided equally
amongst, my four sons, Samuel, Thomas, Charles and William."
The testotor died in 1839. At the date of the will he had twelve
children. Charles, William, Julia, Maria, Jane and Harriet were
unmarried at the date of the will. Samuel, Thomas, Catherine,
Elizabeth, Mary and Sarah were married at the date of the will.
Charles married after the testator's death, and had issue. William
married after the testator's death, and died in the lifetime of Jane,
without issue. Julia married the Rev. H. Johnston, during the
testator's lifetime, and had issue at the death of Jane. Maria
Tnarried Francis Freeman in the testator's lifetime, and Had issue
1860.
R0IU.Z
' /— -^
ELLIOTT
V.
ELLIOTT.
Statement
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484
CHANCERY REPORTS.
1860.
Rolls.
s , '
ELLIOTT
V.
ELLIOTT.
Statetnemi,
at thO' death of Jane. Harriet iilso married dnring the testator's
lifetime, but had no issue. Samuel survived Jane, and died in
December 1858, leaving issue. Thomas, Catherine and Elizabeth
had issue at the death of Jane. Marj died in the lifetime of
the testator and of Jane, leaving issue. Sarah died in 1841, in
the lifetime of Jane, leaving issue. Jane died in 1857, unmarried
and without issue.
The petition was filed for the administration of the assets of the
testator, and was referred to Master Litton, under the 15th section
of the Chancery Regulation Act. The Master, by the final order of
the 18th of June 1860, declared that the sum of £2000 bequeathed
to Jane Elliott became, upon her death without issue, divisible in
equal shares amongst such of the sons and daughters of the testator
as were married at the date of the will, and survived Jane Elliott,
and had issue at the time of her death, viz., Samuel Elliott, Thomas
Elliott, Catherine Brownrigg and Elizabeth Walker.
Maria Freeman and Julia Johnston, and their husbands, appealed
from the order. The executors of William Carey, who had survived
his wife Sarah, also appealed.
Mr. Robert R. Warren and Mr. Vanee^ for Johnston and wife,
and Freeman and wife.
Argment. The gift of Jane's £2000 is contingent on her dying without
issue, and is a gift to a class which was to be ascertained at
the period of distribution (t. e., the death of Jane). All the
sons and daughters who were married, and had issue at that
period, are entitled to a share : 2 Jarman on Willsy p. 227 ;
JBouverie v. Bouverie (a) ; Ringrose v. Branham (&) ; Doe d. Bur-
ton V. White (c). The description of the class who are to take
is complex; the objects of it must be mariried and have issue.
The effect of the Master's decision is to refer one part of the
description (the marriage) to one period, the date of the will;
and the other part of the description (having issue) to another
(o) 2 Phil. 349.
{b) 2 Cox, 884.
(c) 1 Exch. 526,
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CHANCERY REPORTS.
485
period, viz., the date of Jane's death: MaUhwieh v. Coeh(a);
1 Roper on Legaeies^ p. 30. '
Mr. Serjeant Latoson^ Mr. Brewster^ Mr. F. W. Walsh and Mr.
S, Walker^ for different parties, in support of the order.
This is not a bequest to a class. Therefore, the principle and
authorities relied on bj the appellants, which are not disputed,
do not apply. It is a bequest to individuals, under the description
of "unmarried sons and daughters" who shall have issue at a
particular period. The words are designatio personarum. The
testator is referring to an actual existing state of things ; and his
words must, therefore, be referred to the date of the will, and not
to the date of the death of Jane: 1 Jarman on Wills^ p. 261 ;
GarrattY. Nibloeh (i); Beck v. Bum (c); Hethergill v. Harris (d).
1860.
Boils,
Argument,
Mr. Dixj for the executor of William Carey, contended that the
bequest was to a class to be ascertained at the death of the testator.
Sarah Carey was then married, and had issue.
The Mastbb of the Rolls.
A motion has been made on the part of the Rev. Henniker John-
ston and Julia his wife, and on the part of Francis Freeman and
Maria his wife, by way of appeal from the decretal order of Edward
liitton, Esq., the Master in this matter, dated the I6th and signed the
18th of June 1860, so far as the said order declares that, upon the
true construction and effect of the will of the testator, Thomas
Elliott, the sum of £2000, thereby bequeathed to Jane Elliott,
became, upon her death, divisible in equal shares amongst such of
the sons and daughters of the testator as were married at the date
of the will of the said testator, and survived the said Jane Elliott,
and had issue living at the time of the death of the said Jane Elliott,
that is to say, Samuel Elliott, deceased, the respondent Thomas
Elliott, Catherine Brownrigg, widow, and Elizabeth Walker, the
wife of Alexander Walker. The appellants, the Rev. Henniker
(a) 3 Ves. 609.
(c) 7 Bear. 492.
(h) 1 R. & M. <
(rf) 7 Beav. 49.
1861.
Jan. 12.
Judffmeitt.
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486
CHANCERY REPORTS.
Judgment.
Johnston and Julia Johnston his wife, and Francis Freeman and
Maria Freeman his wife, contend that the £2000 shonld be divided
into seven shares. Another motion bj way of appeal has been served
on the part of the executors of William Carey, who was the husband
of Sarah Carey, to which I shall hereafter advert.
The will of Thomas Elliott bears date the I9th of January 1833.
The testator by his will devised to trustees all his lands, on trust
that they should, after the testator's decease, permit and suffer his
wife, from and immediately after his decease, to have, hold and
enjoy, during her life, his interest in the house and lands of Rath-
coage, together with the plate, linen, china and all chattels which
should, at the testator's decease, be in the said house or on the said
lands, for the special purpose that his wife shauld have a residence
** for and with all my unmarried children, in case it should be desint^
ble to them to remain in Rathcoage." After a devise of Rathcoage,
&c., after his wife's decease, this clause follows : — ^' And whereas I
I am now possessed of a sum nearly of £10,600 in the new and old
£3^ per cent, stock, and which I expect to add to, and have four
daughters unmarried, Julia, Maria, Jane and Harriet, to each of
them I purpose giving, as a marriage portion, a' sum of £2000 each;
I leave and bequeath to my said trustees the said £3^ per cent
stock, ready money, debts, and rents due to the last gale-day pre-
ceding my decease; and, in case the whole does not amount to
£10,000, to be hereafter disposed of, I direct my son Charles to pay
a sum of £1000, and my sons Samuel and Thomas to pay £500
eacl^ or more or less, in proportion, if necessary, as may be wanted
to make up their sisters' fortunes. I direct £2000, part of the
above £10,000, to be paid to Oliver Naylor, as and for my daughter
Mary's fortune, which Naylor requested me to hold, and for which I
paid him £6 per cent., during pleasure. I leave to my four daugh-
ters unmarried a sum of £2000 each, being part of the residue
of £10,000 ; and I desire they may receive, from the day of my
death, as and for the interest of their legacies, the interest due and
arising out of said £3^ per cent, stock, as and for their support and
maintenance. I devise the said legacy or portion to each of my said
daughters on their day of marriage, not sooner, provided she marries
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CHANCERY REPORTS.
487
with the consent and advice of my said trustees. And then follows - 1861.
Rolls.
this passage, on which the question arises : — '* And, if one of mj
said daughters die without being married, I desire the fortune and
legacy of her so being the first to die to go to, and be divided equally
amongst, such of my married sons and daughters as may have issue Judgmgnt.
living at the death of such dying daughter ; and, in case one other
or more daughters die unmarried, her or their fortune or legacy to
go to, and be divided equally amongst, my four sons, Samuel, Tho-
mas, Charles and William.'' The testator then devised to his four
sons respectively, and their heirs, the lands in the said will men-
tioned.
The testator died in 1889. He had twelve children. With respect
to the four daughters of the testator mentioned in his will as his
unmarried daughters, Julia married in the testator's lifetime, but
after the date of the will, the Rev. H. Johnston. Maria married
Francis Freeman, in the testator's lifetime, but after the date of the
wilL It is alleged that the said Julia and Maria had issue living at
the death of Jane Elliott. No evidence has been laid before me as
to this ; but the statement was not denied ; and I assume that the
fact is so. Julia and Maria, and their said respective husbands, are'
' two of the appellants.
Jane Elliott died in January 1857, without ever having been
married; and her £2000 (which is the sum in dispute) became
distributable under the clause in the will which I have read. Harriet,
the fourth of the daughters whom the testator in his will calls his
unmarried daughters, was not married at the death of the testator,
but did marry during the lifetime of her sister Jane ; but she never
had issue, and makes no claim. Samuel Elliott, a son of testator,
was married at the date of the testator's will ; and, having survived
his said sister Jane, he died in December 1858, leaving issue^ who
were living at the death of the said Jane. The facts in relation
to testator's son Thomas, and his daughters Catherine Brownrigg,
widow, and Elizabeth, the wife of Alexander Walker, are the same,
except that Thomas, Catherine and Elizabeth are alive; that is, they
were married at the date of the will, and survived their sister, Jane
Elliott, and had issue living at the death of the said Jane. The
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CHANCERY REPORTS.
1861.
Rolh.
Judgment*
Master has decided that the said Samael, Thomas, Catherine and
Elizabeth were the parties entitled at Jane Elliott's death to her
£2000. Charles was unmarried at the date of the will, and also at the
death of the testator; but he married during the lifetime of his sister
Jane, and )iad issue living at her death. The appellants Julia and
Maria allege that he was entitled to a share. William, another son
of the testator, was unmarried at the date of the will, and of the
death of the testator, but married during the lifetime of his sister
Jane, and died without issue during her lifetime. He, of course, had
no claim. Mary Elliott, a daughter of the testator, was married, at
the date of the will, to OliTer Najlor ; and she died in the lifetime
of her father and of said Jane, and left issue. She had no claim,
having died in her father's lifetime. Sarah, another daughter of the
testator, was married to William Carey, during the lifetime of the tea-
,tator. It is alleged that tiiere is some doubt whether she was married
before or after the date of the will ; but she must have been married
before the date of the will, as the testator states, in his will, that he
has four daughters unmarried, Julia, Maria, Jane and Harriet
From that statement I apprehend he could have had no other
* daughter then unmarried. Sarah died in the lifetime of the
said Jane, leaving issue. The executors of William Carey have
appealed.
If this be so, the state of the testator's family, at the time of making
his will, was this : he had four daughters unmarried, Julia, Maria,
Jane and Harriet, and he had two sons unmarried, Charies and
William. He had four daughters married, Catherine, Elizabeth, Mary
and Sarah, and two sons married, Samuel and Thomas. Mary died
in the testator's lifetime, and the bequest to her lapsed. The
Master has decided that the bequest over (which took effect by the
death of Jane Elliott without being married, and, under which bequest
over, Jane Elliott's £2000 was ^' to go to, and be divided equally
amongst, such of my married sons and daughters as may leave issue
living at the time of the death of such dying daughter"), became
payable on the death of Jane Elliott, to such of the sons and daugh-
ters as were married at the date of the will, and who survived Jane
Elliott, and had issue living at the time of the death of the said
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Jaoe Elliott ; that is to eay, Samuel Elliott, deceased, the respondent
Thomas Elliott, Catherine Brownrigg, widow, and Elizabeth Walker,
wife of Thomas Walker.
The said appellants Julia and Maria, and their husbands, admit that
the said four sons and daughters, in the Master's order mentioned, were
entitled to a share of the £2000, but thej allege that the appellants
Julia and Maria, and their brother Charles, are also entitled to a
share of Jane Elliott's £2000, and that such sum should be divided into
seven shares ; and they contend that the terms ** my married sons
and daughters," in the bequest over, include such sons and daugh-
ters as were not married at the date of the wUl, but who were
married during the lifetime of the testator, or during the lifetime of
the said Jane Elliott, and who survived the said Jane Elliott, and
who had issue living at her death. Mary, who was married at the
date of the will, having died in the testator's lifetime, the bequest
to her, I apprehend, lapsed. A different question, to which I shall
bereafler advert, arises as to Sarah.
It is said by the Counsel for the said appellants that, ** Where a
particular estate or interest is carved out, with a gift over to the
children of the person taking that interest, or the children of any
other person, such gift will embrace not only the objects living at
the death of the testator, but all who may come into existence before
the period of distribution:" 2 Jarman on Wtllsy p. 127* There is
no doubt that the law is correctly laid down by Mr. Jarman,
where there is a bequest to children as a class ; but the question
here is, whether the testator, in bequeathing to his *' married sons
and daughters," in the clause in question (he having two sons and
three daughters married at the date of his will), was bequeathing to
a class, or whether he intended to designate certain of his sons and
daughters answering the description when the will was made, and
whether he is to be considered as referring to the state of circum-
stances as they existed at the date of his will, or as they might exist
at the time of his death, or at the time of the death of the first of
his four unmarried daughters who should die without being mar-
ried ? The Master has decided that the bequest over was not to a
class, but to persons sufficiently designated and described by the
1861.
RoUs.
Judgment,
VOL. 11.
62
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1861.
RoUs.
Judgment,
490 CHANCERY REPORTS.
will. The case of Bulloek v. Bennett (a), which was not referred
to, appears to me to be an important case on the qnesUon which
the Court has to decide. In that case a testator had a daughter
who, at the date of his will, was a widow, she having been twice
married, and both her husbands being dead. Bj his will (dated
after the Wills Act came into operation), he gave a sum of stock,
upon trust to pay the income to her for life, or until her marriage.
She married, after the date of the will, a third husband, with the
knowledge and approbation of the testator, who, however, died
without re-publishing his will. It was held, by the Lords Justices
of Appeal, that the daughter took no interest under it ; and that
the clause in the Wills Act, that the will is to be construed as if
made immediately before the testator's death, relates only to the
property comprised in the will. It is to be observed that, in the
present case, the will of Thomas EUiott was executed before the
statute ; but the statute makes no alteration in the law in relation
to the object of a gift : Jarman on Willsy 2nd ed., voL 1, p. 266.
Lord Justice Turner, in giving judgment in the case of Bullock v.
Bennetif said : — " Questions of this nature must depend upon the
language and context of the instrument ; and the point to be here
ascertained is, whether the testator is referring to the state of circum-
stances as they existed at the date of the will, or as they might
exist at the time of his death. I state advisedly that, in my judg-
ment, this is the point, notwithstanding the late Wills Act, which,
by its 24th section, enacts, that every will shall be construed with
reference to the real and personal estate comprised in it, as if it had
been executed immediately before the death of the testator, unless a
contrary intention shall appear by the will. It is with reference to
the real and personal estate comprised in it that the will is to speak,
as if executed immediately before the death of the testator. I under-
stand this to mean, not with reference to the objects of the, testator's
bounty, who are to take the real and personal estate, but with refer-
ence to the real and personal estate, which is to be taken by those
objects. Had it been intended otherwise, the words with reference
to the real and personal estate would hardly, if at all, have been
(a) 7 Do G., M. & G. 283.
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required to be inserted. The statute, therefore, does not, in my
opinion, affect the case, and we must consider the question on the
language and context of the will. Now, according to the disposi-
tions of the will, the trustees are to pay the income to the daughter,
during her life, or until her marriage. It was present, therefore,
to the testator's mind, when he made his will, that she was not
at that time married ; and he has made this more clear by ulterior
dispositions, by which he has given the fund, after her decease or'
marriage, to the children of her first and second husbands. Are we
then to understand a testator, who thus speaks of his legatee as
not being married, to refer, when he speaks of her future marriage,
not to her next marriage, if it should take place in his lifetime, but
to any future and subsequent marriage which may take place after
his decease ? I think not ; but that we must apply the words which
the testator uses to what his will shows to have been passing in his
mind at the time. He demonstrates that he was referring to the
circumstances as they then stood, and we must apply his words to
those circumstances."
Applying the principle of that case to the present, it appears
to me that the testator was " referring to the state of cir-
cumstances as they existed at the date of the will." It was
present to the testator's mind, when he made the will, that he had
some children, four daughters and two sons unmarried, and four
daughters and two sons married. It is perfectly clear that the
testator, in using the terms '*my four daughters unmarried," re-
ferred to the state of circumstances which existed at the date of the
will ; and what the Court is called upon, by the appellants Julia
and Maria, and their husbands, to decide, is that, although such
was the meaning of the terms "my four daughters unmarried,"
yet that the testator, when he used the terms << my married sons
and daughters,'.' did not refer to the state of circumstances as
they existed when the will was made. The terms *' unmarried "
and ''married" appear to have been used in contradistinction;
and it would appear to me to be a strained construction to hold that,
as to the former, the testator referred to the state of circumstances
at the date of the will, and, as to the latter, the state of circum-
stances at a future period.
1861.
Rolls.
JudymgHt.
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492
CHANCERY REPORTS.
Judgment,
1S61. The testator recites that he had '^four daughters unmarried,
Bolh,
v.^— V— ^ Julia, Maria, Jane and Harriet'* The term '^ unmarried " there
^^ relates to the date of the will. In a subsequent passage the testator
ELLIOTT, leaves to each of his ^' four daughters unmarried a sum of £2000.''
There also the term ^' unmarried " refers to the date of the wilL
The will then directs that if one of the testator's daughters should
die without being married, '* I desire the fortune and legacy of her
so being the first to die to go to, and be equally divided amongst,
such of my married sons and daughters as may have issue living
at the time of the death of such dying daughter." The question is,
what is the meaning of the terms '^ my married sons and daugh-
ters " in that clause ?
I think, on the whole, that the testator was, as Lord Justice Turner
says, ** referring to the state of circumstances as they existed at
the date of the will," and that I shoi|ld ** apply the words which
the testator uses to what his will shows to have been passing
in his mind at the time. He was referring to the circumstances
as they then stood, and we must apply his words to those circum-
stances." The natural meaning of the words ''my married sons
and daughters " is, his sons and daughters married at the time
the testator was making his will. No doubt, their having issue
at the death of Jane Elliott was a future event; but that does
not show that the marriage was to be a future event. On the
contrary, the testator understood the language which should be
used when referring to a future event.
I am caUed on to insert words in the will, and to hold that ''my
married sons and daughters " means my sons and daughters now
married, or who shall be married during the lifetime of such of
my unmarried daughters who shall fitst die without being married.
I think that the observations of Lord Wensleydale, in Gra^ v.
Pearson (a), are applicable to this case, and that the construction
sought to be put on the will by the appellants is not in accordance
with the grammatical and ordinary sense of the words.
Mr. Jarmany in his work on Wills^ 2nd ed., voL 1, p. 266, after
observing that if a testator gave a sum of money to his son Joho,
(a) 6 H. of L. Gas. 106.
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CHANCERY REPORTS.
498
the gift will take effect in favour of a son of this name (if any),
at the date of the will, and of him only; and that if such son
should die in the testator's lifetime, and he should afterwards
have another son of the same name, who should survive him,
such after-bom son would not be an objeet of the gift. He adds :—
" And the same rule would seem to obtain if the devisee or legatee
were described with reference to the filial character only, without
any other designation, as in the case of a gift to my MOHy simply ;
which would apply, it is conceived, to the son (if any) living at the
date of the will, to the exclusion of any after-bom son, though such
af^er-born son should, by reason of the decease of the then existing
son, happen to be the only person answering the description at the
death of the testator." If this be a correct statement of the law, the
terms " my married sons and daughters " mean those who were mar*
ried at the date of the will. The testator had two sons and two
daughters married at the date of the will, to whom the description
distinctly applied* It is not, however, necessary, in my opinion, to
decide in this case whether the opinion of Mr. Jarman^ as above
stated, is correct, as, without reference to the point suggested by
Mr. Jarman^ I think the appeal is not sustainable.
There is some difficulty on the question raised by the appeal of
the respondents Henniker Johnston and Julia his wife, and of Francis
Freeman and Maria his wife ; but, on the whole, I am of opinion
that the Master was right, so far as their appeal is ooncemed ; and
that Julia and Maria did not take under the will both as unmarried
daughters and as married daughters.
With respect to the appeal of the executors of J. Carey, the late
husband of Sarah Car6y, deceased, there is a formal objection to
that appeal, as the ehote in action of the wife belongs to the
husband surviving, as her administrator, and the executors of her
husband are not entitled. That objection, however, could be
removed by taking out administration to her.
As to the substantial question in the case raised by the appeal of
the executors of J. Carey, it is said that it is doubtful whether or
not Sarah Carey was married at the date of< the will. That fact
must be ascertained before I decide on the claim. I apprehend she
1861.
ito/Zf.
^_ ^ *
ELLIOTT
V.
ELLIOTT.
Judgmmt.
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494
CHANCERY REPORTS.
1861.
RolU.
Judgment.
Jan. IS,
Argument.
must have been married at the date of the will, from the reference
by the testator to his four unmarried daughters, Julia, Maria, Jane
and Harriet.
The question, as to Sarah has not been satis&ctorily argued, and
I must hear one Counsel on each side on that claim ; first, as to
the fact whether she was married at the date of the will ; and, if so,
secondly, was she entitled to a share under the will.
Mr. Dix stated that Sarah Carey was married at the date of the wiH,
and that administration would be taken out to her. He contended
that all the sons and daughters who answered the description at the
testator's death took vested interests : 1 Jar. p. 683 ; Duffield y.
Duffield (a) ; Benyon v. Mmddison (&) ; Lees v. Massy (c) ; Arrow*
smith's Trust (d) ; Wharton v. Barker {e).
Judgment.
Mr. Serjeant Lawsouj contra.
Sarah, having having died before Jane, was not entitled to any
part of the £2000 ; the gift being to persons who were alive and
had issua at the death of Jane : 1 Rep.y p. 588 ; Leake v. Eobin"
^oft 09 ; KirkmafCs Trusts (y).
The Master of the Rolls refused the motion of the executors
of W. Carey, stating that the authorities cited by Mr. Serjeant Zaap-
son appeared to establish that the decision of the Master was right.
(a) 3 Bligh, N. S., 261.
(c) 6 Jut., N. S., 2.
(e) 4E. &J.48d.
(b) 2 Br. C. C. 75,
id) 7 Jut. 9.
(f) 2 Mer, 363.
(^) 3 Do G. & J. 558.
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CHANCERY REPORTS. 495
1860.
Nov, 16, 17.
FOWLER V. LIGHTBURNE. 1861.
Jem, 12.
Th£ petition was filed for the specific perfq^ance of two agreements A, seued in
for the sale of certain lands of Ardnamore, Fordstown and Little Fords- lands to B and
town ; and the principal question in the case was, whether Stafford yiVor of them*
Lightbome, the heir-at-law of Joseph Lightbume, the vendor, who ^the mu^w*
was dead, was a necessary party to the conveyance ? It was alleged ^ fo^ Hf ^"* df
by the petitioner that, the legal estate had descended to Stafford ^^' ^ ^f
^ ^ o cease, to the
Lightbume, on the death of his father Joseph Lightbume. The vise of B and
respondent Penelope Lightbume, who was the widow and devisee of nuriyor, and
the heirs of
Joseph Lightbume, cont|9nded that the legal fee had been conveyed, snch sorviyor,
by Joseph Lightbume, to the trustees of a certain settlement of the pennit and
22nd of January 1810. The question, therefore, turned entirely on ^eiye a join!"
the constmction of that deed, which is sufficiently stated by his ST'dSilh o?
Honor,.»>a, p.497. SiSCigt
heirs of A —
Held, that B
Mr. Brewster. Mr. Norman and Mr. Warren, for the petitioner, fnd C took a
' ^ ' legal estate in
argued that the tmstees of the settlement only took the legal estate ^ee in remain-
der,
for the life of Penelope Lightbume ; and that the purchaser was a, haying
entitled to a conveyance of the entire fee, both legal and equitable t deyiring allhis
Beaumont v. The Marquis of Salisbury (a) ; Curtis v. Price (b) ; ^J^d^h^J!
Wiehkam v. Wichham (c) ; James v. Bion (d) ; Owen v. Flack (e) ; '^ 'contracted
^ ^ ^ ^* ^-"tosellthe
Parkin v. Thoroldff); Roberts v. Marchant(a). ^^» «id
afterwards
The Attorney-General^ Mr. Serjeant Sullivan and Mr. Palles, in a salt for
snecific Der*
for the respondent, relied on Lord St Leonards on Ven. ^ Pur., formaxicehy
the purchaser,
that the heir-at-law of A was not a necessaiy party to the conyejance, as he had
no legal estate in the lands, and no equitable estate, and no right to institute a suit
to set aside the contract, haying regard to the will of A, devising all his proper^
to his wife, who, if the contract was set aside, would be entitled to the lands ; and,
if the contract was not set aside, would be entitled to the purchase-money, — {,Robert$
y. Marchant explained.]
(a) 19 Beay. 196. (6) 12 Ves. 89.
(c) 19 Yes. 419. (<0 3 Swanst. 234.
(0 2 Sim. & St. eOO. (f) 16 Beay. 59.
{g) 1 Ph. 370.
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496
CHANCERY REPORTS.
1860.
Rolii.
TOWLBB
V,
UOHTBUBMK.
Argument,
1861.
Jon, 12.
p. 157; Curre v. Bowyer(a)i LewiM v. Ree8(b)\ Colmore v.
Tyndall (e) ; Williams v. Waters {d) ; 3PCulloch v. Gregory (e) ;
Radford v. Southern (f) ; Doum v. Doton (^) ; A>« v. Zi^
wtf//(A); Jack V. M'IfUyre {})% NoU y. Riccard (k); Shiph.
Touch,, p. 248 ; 22o/. -4ft., p. 54, j!>/. 26 ; Vicars Choral v. 4y«» (0 5
Zyfc V. -Ear/ of Yarborough (m) ; Parr v. Lovegrove (n).
The Masteb of the Rolls.
This is a suit for the specific performance of two agreements
entered into between Joseph Lightbume, deceased, and Penelope
Ligbtburne, his wife (who is one of the respondents), of the one
part, and the petitioner, of the other part, for the purchase, hj the
petitioner, from tbe said Joseph Lightbome, of certain lands therein
respectively mentioned.
The first of those agreements bears date the 13tk of Angost
1840, and the second agreement bears date the 22Qd of August
1842. Penelope Lightbume joined in the agreements, in order to
bar any right to jointure or dower, and she executed the agreements
under the statute, having been £rst duly examined. It Ib admitted
that the petitioner is entitled to a decree for a specific performance
of both the agreements ; and the only question is a question as to
how the costs of the suit should be disposed of; the petitioner con-
tending that Stafibrd Lightbume, who has been made a respondent,
and who is the heir-at-law of Joseph Lightbume, is a necessary
party to the conveyance to be executed to th% petitioner; and
the respondent Penelope Lightbume having insisted that Stafford
Lightbume was not a necessary party, and that she. was not
bound to have had the conveyance executed by him.
The facts of the case, so far as they are material, are as fol-
(a) 5 Bear. 6, n.
(c) 2 Y. & J. 622.
(e) 3 E. & J. 12.
(^) 7 Tannt. 343.
(0 12CL&Fin. 151.
(0 Sir W. Jonca, 435.
(6) 3 K. A J. 132.
(<0 14 M. & W. 166.
r/) 1 M. ft SeL 299.
{h) 9 Ir. Com. Law Bep. 184.
(A) 22 Beav. 307.
(m) 1 John. 70.
(n) 4 Jur., N. S., 600.
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CHANCERY REPORTS. 497
low : — ^A settlement was executed on the marriage of Joseph Light- 1861 .
borne with the respondent Penelope Lightbume, which bears date >- v *' *
FOWLBB
the 22nd of January 1810. Bj the terms of that deed, the lands v.
UOHTBUBNE.
thereby settled (which I am of opinion included Little Fordstown,
notwithstanding the mistake as to the acreage*) were conveyed •^«^*"''
to Arthur Meadows and John Emerson (the trustees), and the sur-
vivor of them, and the heirs of the survivor, to the use of Joseph
Lightbume for life, and, after his decease, " to the use of the said
Arthur Meadows and John Emerson, and the survivor of them^ and
the heirs, of such survivor,** upon trust to permit and suffer the
said Penelope to receive the sum therein mentioned for her jointure,
and, after the death of the said Penelope, then to the use and behoof
of " the right heirs of the said Joseph Lightbume for ever." Under
the provisions of that deed, the legal estate in remainder, after
the death of Joseph Lightbume, was, in my opinion, in the tms-
tees. It is admitted that the language of the deed is sufficient
to give the legal estate to the trustees after the death of Joseph
Lightbume, the limitation being to the use of the trustees, &c.
But it is said that it was the intention of the parties to the deed to
restrict the estate in the trustees to an estate ^r wUer vie^ t.«.,
for the life of the respondent Penelope Lightbume ; and that, if the
intention be clear, it must prevail. There is, however, nothing in
this case to show an intention to cut down the estate in the trustees
to an estate pur auter vie.
If the estate was so cut down, and the jointure of Penelope
Lightbume was in arrear at her death (supposing that she had not
given up her claim to such jointure as hereinafter mentioned), in
such case it would have been necessary, for adequately securing
the payment of such arrear, that the estate in the trustees should
continue after her death. This subject has been fully considered in
the case of Lewis v. Rees (a). In that case, there was a limitation
in a deed to trustees and their heirs, without words restricting it to
the lives of preceding tenants for life, upon tmst to preserve contin-
gent remainders; and it was held that, although the omission of
(a) 3 Kay 4b J. 132.
• Shep. Touch. 248.
VOL. 11. 63
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498 CHANCERY REPORTS.
1861. such words was probably an orersight, yet, the iDBtniment being
^ , ' V a deed, the Court could not 'construe the limitation as restricted,
o, notwithstanding an estate in fee was a larger estate than was
LioHTBURNB. ^^^^jj^ f^^ ^^^ purposcs of the trust, and the limitation was
Judgment, repeated in a subsequent part of the deed, and was followed by
a term of years in a third party, upon trust to raise portions, and
by a power to the tenants for life to grant leases; and it was
furthep held that, in order to justify the Court in restricting such
limitation by deed to an estate /mr auier vie, it must be shown thatr
the intention of the parties, as manifested by the deed, cannot be
carried into effect, unless the limitation be so restricted. The dis-
tinction between deeds and wills was adverted to in the case. All
the authorities were considered and commented upon by Yice-Chan-
cellor Wood, in his very able judgment ; and that case appears to me
to be a clear authority to establish that the legal estate in fee in
remainder was and is in the trustees in the settlement of 1810. A
mortgage in fee was subsequently executed by Joseph Lightbume to
James M*Evoy, of the lands afterwards contracted to be sold to the
petitioner, by the articles of agreement of the 10th of August 1840;
and a mortgage for one hundred years was executed by the said
Joseph Lightbume, of the lands of Little Fordstown, to the said
James M'Evoy. The lands of Little Fordstown were the subject of
the agreement of the 22nd of August 1842. I am of opinion (as I
have already stated), on the authority of Lewis v. Eees, that the
legal estate in fee in the lands in both mortgages was outstanding in
the trustees of the settlement of 1810 at the time the mortgages wa«
executed. If not, so (ar as the lands of Little Fordstown were con-
cerned, the legal estate, subject to the term of one hundred years, would
have remained in Joseph Lightbume. By the first of the agree-
ments, dated the 10th of August 1840, the specific performance of
which is sought in this suit, and made between the said Joseph
Lightbume and Penelope his wife, of the one part, and the peti-
tioner, of the other part (the said Penelope having executed the
agreement under the statute, after having been examined, and with
the view of releasing any claim for dower or jointure), the said
parties of the first part agreed to sell to the petitioner the lands of
Fordstown, described in the agreement, and the lands of Ardanew,
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CHANCERY REPORTS. 499
for the sum of £1006. 68. 4d. (to be paid in the manner and at the 1861.
time in said agreement mentioned), subjeet to certain leases, and to ^^ --y ■' *
the said mortgage of the fee to James M'Evoy ; and Joseph Light- v.
bnme coyenanted, within six months after the death of Mrs. D. ^^^^^[■^'***
Ormsby, at the expense of the said J. Lightbarne, to deduce a dear •Mj"»««'*
title, to the satis£eustion of the Counsel and solicitor of the petitioner,
in the usual way.
The second agreement, the specific performance of which is sought,
bears date the 22nd of August 1842, and was made between the
said Joseph Lightburne and Penelope his wife, of the first part, and
the petitioner, of the second part 4 and the said parties of the first
part thereby agreed to sell the lands of Little Fordstown to the
petitioner, for the consideration therein mentioned, subject to certain
leases, and to the mortgage for one hundred years, granted to the
•aid James M'Evoy; and the said agreement contained a similar
covenant as in the first agreement, as to making out title within
six months after the death of Mrs. D. Ormsby. The agreement of
the 22nd of August 1842 was also executed undor the statute by
Penelope Lightburne, she having been duly examined. Mrs. D.
Ormsby died in December 1868. The petitioner having paid off
the mortgages on Little Fordstown, the mortgage was assigned to
a trustee for him.
Joseph Lightburne, by his will, dated the 30th of May 1835,
devised certain property therein mentioned to his wife, the said
Penelope, and thereby devised all his other property, except his
gold watch, to the said Penelope Lightburne, upon the special trust
and confidence to have and enjoy the same during her natural life,
and to support and provide for certain of their younger children
therein named ; and to distribute the same amongst them in equal
shares and proportions after her decease, or at any time previous
thereto that she might think proper. The testator then bequeathed
his gold watch to one of his younger children ; and the will contains
this clause : *' and as my eldest son Stafford is not in afflnoit cir-
cumstances, if my dear wife could spare him £50 or £100 at my
decease, I am sure she will do so; but this is only a recommendation,
and not a devise.** The testator then appointed his said wife Penelope
hiA Aole executrix. The testator made a codicil to his will, altering • ,
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500 CHANCERY REPORTS.
1861. in Bome respects the provisions in the will; and it concludes thus,
RoOm.
^-i ■■ y ' *' and if my dear wife can, I am sure she will give my four sons
FOWLSR
V. Stafford, Harcourt and Joseph and Henry £100 each.'' Prohate
LIGHTBVBMS. , . ., ^ ,
was granted to the said Penelope.
Judgment. Thus it will appear (if the construction which I put on the
settlement of 1810 be correct, and the legal estate in fee was
vested in the trustees in said settlement) that all that Joeeph
Lightbume contracted, or could have contracted, to sell to the
petitioner, by the articles of agreement of 1840 and 1842, was
an equitable estate in fee. By the will of Joseph Lightbume, he
bequeathed away all his property from Stafford Lightbume, his
heir-at-law, unless so far as the codicil, if binding, entitled him
to £100. I do not, therefore, see what estate or interest Stafford
Lightbume had in the lands. The effect of the will was to entitle
Penelope Lightbume to the purchase-money, which the petitioner
contracted by the articles of agreement to pay. I apprehend that
Stafford Lightbume could not (having regard to the will and
codicil) have filed a cause petition or bill to set aside the contracts
sought to be specifically enforced ; and if not, and if he has no legal
estate, I cannot see on what ground he was a necessary party to
the conveyance to the petitioner. The case of Eoberis v. Jfor-
chant(a)f which has been strongly relied on by the petitioner's
Counsel, does not apply ; for in that case the vendor died intestate,
knd the heir-at-law was a necessary party to the suit filed by the
administrator' of the vendor against the purchaser, for a specific
performance of the contract; as the heir-at-law of a vendor who
dies intestate might dispute the validity of the contract: but I
apprehend that, in the present case, Stafford Lightbume could not
dispute the validity of the articles of agreement of 1840 and 1842,
having regard to the will of Joseph Lightbume, and having no
interest whatever in disputing those articles. If the contracts
were set aside, Stafford Lightbume would not be entitled to the
estate, at Law or in Equity ; and if not, having no interest in setting
aside a contract, he could not take any proceeding for that purpose.
If Stafford Lightbume has neither a legal estate nor an eqoitaUe
(a) 1 Hare, 647 ; S. C, 1 Phil. 370.
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CHANCERY REPORTS. 501
estate, nor a right to file a bill or cause petition to set aside the 186J.
contracts, for what purpose was he to be a party to the convey- ^— ■ y'./
^ . , . , , . .11 1 . rowL«R
ance? A purchaser is not entitled to have a wul proved against „.
an heir-at-law, unless there is some reasonable ground for disputing "®^™^*^^^
its validity: M^Culloch v. Gregqry (a). Judgment.
Stafford Lightbume, being a party to the suit, will be bound
thereby. But I am of opinion, for the reasons which I have stated,^
that the respondent Penelope Lightbume was not bound to have
the conveyance to the petitioner executed by Stafford Lightbume ;
and, if I am right in that opinion, the petitioner is not entitled to
the costs of the suit as against Penelope Lightbume. There is,
however, some difficulty on the question, whether Little Fordstown
passed to the tmstees under the deed of 1810, having regard to the
mistake in the acreage ; and if Little Fordstown did not pass under
the deed of 1810, the legal estate in Little Fordstown, subject to
the mortgage for one hundred years, would be in Stafford Light-
bume : in which case he would, I apprehend, have been a necessary
party to the conveyance, in respect of such legal estate.
Having regard, therefore, to the doubt on this point, and, as
there is some apparent conflict in the authorities referred to in
Lewis V. Rees^ I shall not give costs against the respondent
Penelope. Each party will abide their own costs.
I shall make a decree for a specific performance of both agree-
ments; and let each party abide their own costs. As to the exact
terms of the decree, the question has not been argued. The respond-
ent claims interest on the purchase-money ; but I do not know who
has been in receipt of the rents. If the parties wish to avoid
the expense of a reference, they can agree as to the sum to be
paid by the petitioner. This will not affect the right of the
petitioner to appeal on the question of Law, if he shall be so
advised.
It was stated, during the argument, that the petitioner was a trus-
tee, and on that account was bound to see that he obtained a good
title ; and he will of course be entitled to be paid his costs out of
the trust property, as the suit was a bona fide suit.
(a) 3 K. & J. 12.
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502
CHANCERY REPORTS.
1860.
RolU.
Dec. 6, 7.
1861.
Feb. 7.
Apnl 17,
The contribn-
tions to renew-
al fines of the
tenant of a
College lease,
and his sab-
tenant, with a
toties quoties
oorenant for
renewal, are in
proportion to
the anmial Ta-
lae of their
respectiye in-
terests.
In calcnlat-
ing the ralae,
the rent pay-
able by each is
tobededacted.
If there were
buildings on.
the land at the
date of the
sub-lease, they
are to be taken
into acoonnt
in ascertaining
the ralne.
Qtuere— If
the buildings
hare been
afterwards
erected?
Staiement.
ORR v. LITTLEWOOD.
A DECREE was made on the 5th of November 1858, declaring the
petitioner entitled to a renewal of a lease of the 30th of October
1821, of certain premises in Townsend-street, in the city of Dublin ;
and it was thereby referred to the Master to inquire and report the
amount of fines and interest due on the renewal, in case the peti-
tioner and the respondent H. Littlewood should differ about the
same.* A renewal of the lease was executed by the College to
the respondent Littlewood, on the 8th of January 1858; and the
petitioner, after the decree, assigned his interest in the said lease of
the 30th of October 1821 to the respondent Alford. The Master
made his report of the 5th of November I860, which was afterwards
amended, in pursuance of an order of the 7th of December I860.
He found the present value of the interest of the respondent Alford
to be £6. 7s. 8d., and the present value of the interest of the
respondent Littlewood to be £274. 1 3s. Id.; and that E. Alford
should pay the proportional part of the entire renewal fines accord-
ing to those two values, with interest from the time of the payment
of the renewal fines to the College, on his several proportions, at the
rate of £5 per cent. The respondent Littlewood took three excep-
tions to the report ; first, that the value should have been calculated
irrespectively of the rents payable thereout ; secondly, that the value
should have been taken of the premises as building ground, irre-
spectively of the buildings afterwards erected thereon ; thirdly, that
the contribution should have been ascertained by reference to the
acreage. The findings in the Master's report, the mode in which he
calculated the value, and the exceptions, are stated at length in his
Honor's judgment.
* See 8 Ir. Chan. Bep. 348, where, in ihe statement, the date of the lease
is erroneonsly stated to be 1850, instead of 1821.
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CHANCERY REPORTS.
503
Mr. Serjeant Sullivan and Mr. Gamble^ in support of the excep«
tions.
1860.
RoUs.
Mr. Serjeant Lawson, Mr. F. W. Walsh and Mr. Pureell, (or littlewood.
Alford, and in support of the Master's report. .
Argument*
MoUmy v. SeoUard (a) ; Dams v. Hone (6) ; Frankfort v.
Thorpe (e) ; Jones v. Jones (d) ; Charlton v. Driver (e); 14 & 15
Vie^ c. 128, s. 7 (Private Act), were referred to. '
The Master of the Rolls.
This case has been brought before the Court on exceptions to the
Master's report. The suit in this case was for the renewal of two
leases, both of which bear date the 30th of October 1821. The
caose was heard before me on the 5th of November 1858, and I
made a decretal order on that day, wheteby the petition was dis-
missed, so far as it prayed a renewal of the lease of the 30th of
October 1821, first mentioned in the petition, and which expired on
the 25th of March 1857 ; and it was further ordered and declared
that the petitioner was entitled to a renewal of the second lease, in
the petition mentioned, and which also bore date the 30th of Octo-
ber 1821, but which would not expire until the 25th of Maroh 1859 ;
and the order (having directed the petitioner to pay to the respond-
ent Littlewood the costs of the suit up to the date of the decretal
order, including the oosts of the hearing) further ordered, in the
event of the petitioner and the respondent H. Littlewood differing
about the amount of the renewal fines and interest payable on the
said last-mentioned lease, that it should be referred to W. Brook^
Esq., the Master in rotation, to ascertain the amount of renewtd
fines and interest payable to the said respondent, and also to settle
the deed of renewal, in case the parties should differ about the same ;
and the Court reserved the question of the costs to be incurred
before the Master, in case the parties differed about the amount of
the renewal fines, &(v This case is reported in 8 /r. Chan. Rep^^
(a) 12 Ir. £q. Rep. 93.
(c) 2 Ban & B. 372.
(6) 2 Sch. & Lef. 340.
(cQ 5 Hare, 461.
1861.
AprU 17.
Judgment,
(e) 2 Br. & Bing. 345.
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504 CHANCERY REPORTS.
1861. p. 848, where the facts are fully stated. The report made under the
Boils.
^ -^ » said decretal order was filed on the 5th of November I860 ; and the
ORB
V. canse came on to be heard, on exceptions to the report, on the 7th of
IflTTLBWOOD* __
December 1860 ; and, it being impossible to dispose of the case
^r»«»«*« satisfactorily, in consequence of no schedule having been annexed
to the report, showing how the sums were calculated, an order
was then made, giving liberty to amend the report on the file, and
add a schedule thereto, showing the mode in which the amount of
the renewal fines, &c, was calculated ; and also giving liberty to the
respondent to file exceptions to the report when amended, instead of
those then filed, each party to file affidavits, if so advised ; and the
case was ordered to stand until Hilary Term 1861. Exceptions
have accordingly been filed to the report, which was amended, in
pursuance of the said order ; and it is only necessary to adjudicate
on those exceptions.
The Master, by his said report, found that the petitioner had, by
indenture, dated the 1st of July 1859> assigned his interest in the
premises demised by the indenture of the SOth of October 1821
(which were the subject-matter of the reference) to the respondent
Edward Alford, and that, after the said assignment, the petitioner
ceased to appear on the reference, which was carried on between the
two respondents Edward Alford and H. Littlewood ; and the report
then proceeds thus : — '< I have, in order to ascertain the amount of
renewal fines payable by the said respondent E. Alford, inquired into
the present value of the interest of the respondent H. Littlewood,
in the piece of ground and premises comprised in the renewal of the
8th of January 1858, and also the present value of the interest
of the said Edward Alford, in the premises comprised in the
lease of the 30th of October 1821, a renewal of which it is proposed
to take ; and in ascertaining the respective values or interests of
the said respondents in said premises respectively, I have acted
upon the valuation made by Messrs. Brassingtons & Gale ; the par-
ticulars of which, and the mode of calculation, appear in the first
schedule hereto annexed:. and I find that the interest of the said
respondent H. Littlewood, in respect of the premises comprised in
his renewal of the 8th of January 1858, is £274. 13s. Id. yearly^
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CHANCERY REPORTS. 505
and the interest of the said £. Alford in the premises, a renewal of 1861.
Rottt.
which is sought, is £6. 78. 8d. yearly ; and that the said E. Alford
is to pay the proportionate part of the entire renewal fine, according
to these two values, with interest from the time of the pajrment of
the renewal fines to the College, on his several proportions of said J^^dgmenU
renewal fines, at the rate of £5 per cent per annum." The report
then finds that the respondent H. Littlewood paid to the College,
in the years 1839, 1844 and 1858, the several sums set forth in
the second schedule to the report, as and for the renewal fines, in
respect of the premises comprised in the said renewal of the 8th of
January 1858 ; and the report then finds that the Master, acting
on the principle above stated, calculated the proportionate part of
the said fines so paid by the said H. Littlewood, to which the said
E, Alford is liable, in respect of the said premises ; and the report
finds that same amounts in all to £9. 19s. 4d., the particulars of
which are stated in the third , schedule, and which, with interest,
amounts, as in said schedule mentioned, to £16. 13s. 3d.; and that
said sum is now payable by the said E. Alford, as his proportion of
the said renewal fines on obtaining said renewal. The first schedule
to the report finds the gross annual value of the premises in
E. Alford*8 possession as £56. The Master (acting on the valuation
of Messrs. Brassingtons and Gale) deducts from that gross value
the rent of £49. 12s. 4d., payable by E. Alford to H. Littlewood,
and the net annual interest of E. Alford, u^ the portion of the pre-
mises in his possession, is there stated as £6. 7s. 8d.
The schedule then finds the gross annual value of the premises
in the possession of H. Littlewood and his undertenants, excluding
the part in E. Alford's possession, to be £275. To that is added
£49. 12s. 4d., the rent payable by E. Alford to H. Littlewood.
That makes the gross annual interest of H. Littlewood, in respect
of the entire premises, £324. 12s. 4d. The schedule then deducts
£49* 198. 3d., being the head-rent payable by H. Littlewood to
Trinity College ; and the net annual interest of the respondent
Littlewood, in the entire of the premises, in the renewal from the
College, is then stated as £274. 13s. Id. The second schedule
sets forth the sums paid by H. Littlewood to the College, for
VOL. 11. 64
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506 CHANCERY REPORTS.
1861. renewal fines, in respect of all the premises in the head lease;
\— .^-1»/ an'd the third schedule finds the proportionate part of the fines,
ORB
V. with interest, payable by E. Alford, to be £16. 3s. 3d. ; the accu-
* racy of that finding depending, of coarse, on the question whether
Judgment, ^^^ fj^g^ schedule correctfy finds the net annual interest of H. Lit-
tlewood, in all the premises, to be £274. 15s. Id., and the net annual
interest of E. Alford, in the portion of the premises of which he
seeks the renewal, to be £6. 7s. 8d. The toties quoties coTcnant
in the lease of the 30th of October 1821 is stated at length in the
report, 8 Jr. Chan. Rep.y pp. 351, 352. What E. Alford is bound,
under the covenant, to pay, is '* a proportionate part of whatever
fine he the said H. Littlewood (who is the assignee of Druiy
Jones) shall pay, on obtaining a renewal or new lease of the pre-
mises hereby demised (amongst others), from the person under
whom he holds the same."
In Mr. Lyne^s work on Church Leases^ p. 134, he states: —
*' Where the covenant for renewal provides, in general terms, that
the undertenant shall pay a proportionable part of the fine payable
by the immediate tenant of the See, without specifying how that
proportion is to be ascertained, it has been questioned whether
the interest of the latter is to be included in the estimate of the pro-
portion, or whether the contribution is to be in the nature of an
acreable assessment, so that, if the whole land were in the possession
of undertenants, with toties quottes covenants, they would pay the
whole fine, and nothing would remain to be contributed by the land-
lord. It is the general opinion that, in such a case, the landlord (t. e^
the immediate tenant of the Church) should be rated. for his propor-
tion ttccording to the value of his interest ; and it is said to have
been so decided in a case before Lord Manners."
The first of the amended exceptions taken by H. Littlewood
states that the Master has inquired into the present value of
the interest of H. Littlewood and E. Alford ; and has deducted
the, amount of rent payable by each: whereas the Master ought
not (as Mr. Littlewood contends) to have deducted the amount of
such rents, but should have found the value irrespective of said
rents payable thereout; and that the proportionate part of the
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CHANCERY REPORTS. . 507
fines payable by E. Alford shoald be £74, calculated as in the 1861.
schedule to the exception.
The second exception insists that, according to the true meaning
of the covenant, the fine for renewal of the sub-lease should be
estimated by comparing the value of the plot of ground so sub- Judgment.
demised, with the value of the entire plot of ground, considering
each as building ground, irrespective of the buildings that have
been or might be afterwards erected thereon.
The third exception is that the Master should have found that
the amount of the fines should be estimated according to the
proportion which the acreable contents of the part sub-demised
bore to the entire.
With respect to the second and third exceptions, I am of opinion
that they are unsustainable ; and that, under such a toHe$ quoiies
covenant as there was in the lease of the 30th of October 1821, ,
the contributions of sub-tenants to renewal fines are to be calculated
according to the proportion which the annual value of the lands
comprised in the sub-lease bears to the annual value of the lands
comprised in the original lease.
I had to consider the subject in the case of Molony v. Seal-
lard (a), and Mr. Serjeant Warren argued the exceptions in that case,
which I overruled, and there was no appeal. With respect to the
second exception, the Private Act of the 14 & 15 Ftc.,-c 128,
which has been referred to, does not apply to the city of Dublin.
If lands were liot built upon at the time of a syb-lease, it might
be an arguable proposition that, under the totie$ quotiet covenant,
the proportionate part of the fine was to be calculated according to
the value of the lands, irrespective of the buildings afterwards
erected thereon ; but that is not the point raised by the second
exception. The premises appear, from the lease of the 30th of
October 1821, to have been then built upon ; and if the propor-
tionate part of the fine is to be calculated according to the proportion
which the annual value of the lands comprised in the sub-lease
bears to the annual value of the entire lands comprised in the
original lease, I do not understand on what principle you are
(a) 12 It. Eq. Rep. 93.
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508 CHANCERY REPORTS.
1861. to exclude from the calculation of value buildings which were
upon the premises at the time of the sub-lease, and are still upon
the premises. If there are two plots of grounds, of which separate
sul^leases are made to different persons, and such plots of
Judgment, ground, if not built upon, would be of equal value, but both
plots were built upon at the time of the sub-lease, and one of the
plots with the buildings thereon was and is double the value of
the other plot with the buildings thereon, according to the second
exception, the same proportion of renewal fine would be payable
by each sub-tenant.
As to the third exception, if there are two sub-leases of twenty
acres each, of part of the lands in an original lease, and the
toties quoiiei covenants in the sub-leases are in the terms of the
covenant in this case, according to the third exception, the same
' proportion of fine would be paid by each sub-tenant, although
the one sub-lease may have been of 9ome marshy, unprofitaUe
land, and the lands demised by the second sub-lease mi^y have
been, and may be, of double the value. The sebond and third
exceptions appear to me to be wholly untenable, and must be
overruled with costs.
With respect to the first exception, which raises the question
whether, in estimating the annual value of the premises in the
sub-lease, and the annual value of the entire of the premises
comprised in the head lease, the rent is, in each case, to be
deducted firom the gross value, I should be very slow to come
to a difierent conclusion firom the Master, his opinion having
been founded on the calculation of the eminent firm of Bras-
singtons & Grale. If there were two adjoining plots of ground
built upon, and demised by two sub-leases to difierent persons,
and they were of equal value, if the amount of rent payable
by each was not taken into account, according to the first
exception, the same proportion of renewal fine should be paid by
each sub-tenant, although the rent reserved on one lease was
double the rent reserved on the other. I do not understand that
principle, if annual value is to be the criterion of the proportioQ
of fine to be paid. It has been stated by Counsel that the rent
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CHANCERY REPORTS. 509
was not deducted in Mohny v. SeoUard. I do not know how that 1861.
Rolis.
is ; bat no sach point was raised bjr the exceptions in Molony v. ^» ^
ORB
SeoUard^ or was argued before me. The affidavits which have v.
been made, and the opinions of Mr. Nun, Mr. Greene and Messrs.
M^Causland and Fetherston, do not throw much light upon the Judgment.
question.
There is a point which might have been raised in this case,
but is not raised by any of the exceptions, and has not been
adverted to or argued bj Counsel. In Molony v. ScoUard{a\
the Master, by his report, found the value at the date of the last
renewal from Trinity College, and not at the date of the report.
In this case the annual value was ascertained as of the date of
the report The last renewal from the College, in the present
case, was on the 8th of January 1858 ; and, therefore, it probably
would have made no difference in the calculation if the valu^ at
that date had been ascertained. It is not necessary for me to
offer any opinion whether the value, under the covenant in the
lease of the 30th of October 1821, should have been ascertained
as of the date of the lease of the 30th of October 1821, or on
the 8th of January 1858, when the last renewal of the head lease
was taken out, or at the date of the report, no such point being
raised by any of the exceptions.*
I shall ovwrule the exceptions with costs; and direct the res-
pondent Mr. Littlewood to execute the renewal settled by the Master,
and to pay the costs incurred before the Master, and of this hearing.
(a) 12 n. Eq. Bep. 95.
• See Stoeken y. Daw$oii (2 Phil. 141).
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510 CHANCERY REPORTS.
1860.
RolU.
N^
Dec. 7.
J.861- RICE V. O'CONNOR.
Feb, 7.
ApHl 19.
Lancia were The petition was filed for the specific performance of a contract
conT^ed by e
registered for a lease of lands in Kerry, alleged to have been entered into on
dfifid to &
purchaser, sab- ^^^ ^^^^ ^^ April 1860, by Howard Holland, who was the bains'
ing leaseTuid ^ ^^' ^^^ S*7l7> ^^^ t^^n owner of the lands. The respondent
to^f nn^ was the purchaser of the lands from Mr. Robert Bayly, under a
tSTTnd r— "^g^^"^^ conveyance of the 24th of March 1858, by which they
Held, that a ^ere conveyed to him, " subject to the existing leases and lettings
parol contract
for a lease, made to the undertenants of the said Robert Bayly ; " and he
with part per-
formance of denied notice of the alleged agreement. In a petition which was
which the pur-
chaser had no dismissed for want of prosecution, and in two affidavits filed in this
notice, was not . , . . , , ,. , ^..w. ' «,,
an ezistmg suit, the petitioner had relied on difierent contracts. The contract
^^1^' ^e ^ relied on in the present suit was a contract for a lease for thirty-
m<»Bniiigof the ^^^^ years, at the rent of £100 a-year, and a payment of a fine of
SembU^A £100. In proof of the contract thus stated, the petitioners relied on
contract by the
vendor, dnlj an entry in the field-book of Howard Holland, which was put in
signed, accord-
ing to the usue by the petition, but turned out not to be signed. The terms
Frauds, ^uld ^ *^^ ^^^U ^"^ stated by his Honor (tw/ra, p. 513.) Mr. Francis
leasc^rlSa^^ Robert Bayly, the son and agent of Mr. Robert Bayly, was exam-
matting S the ^°^^ before the Court; and an entry in a rent-book, signed " H. H,"
deedy and which was proved to be in ^he haiidwriting of Holland, was relied
pnrcha«ar. ^n. This entry was not put in issue by the petition. The peti-
The distinc-
tion between doners also relied on part performance of the contract, having been
estates and put into possession under it. Mr. Francis Robert Bayly proved
equitable
rights cousin that he had no written authority from his father to make leases,
AtkrttA
* . but he had his general sanction, and that anything he did his father
for specific would have sanctioned ; that he gave authority to Holland to let
performance ^
of a contract the farm to the petitioners at £100 a-year rent, and £100 fine, for
relating to
lands, the a term of thirty-one years ; that Howard told him of the arrange-
documents
relied on to
prove the contract must be put in issue specifically by the petition.
SemUe — ^Part performance of a contract is not binding on a purchaser for valuable
consideration without notice.
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CHANCERY REPORTS.
511
ment he had made, and he adopted it ; received the rent and the
fine, £67 of which was paid hy a bill, and the balance, £43 or £44,
was allowed to the petitioners for rates due before they went into
possession of the farm, and paid by them. That the transaction
completely escaped his recollection on the occasion of the sale to
the respondent, and that they dealt on the sapposition that there
was no lease to bind him.
1860.
RolU.
Statement,
Mr. Seije&nt Sullivan and Mr. Nelligan^ for the petitioners, Argumnu.
contended that a complete contract by an authorised agent was
disclosed by the entries in HoUand'e field-book and in the rent-
book, which contract had been adopted and acquiesced in by
Robert Bayly: Maclean v. Dunn (a) \ Wilson v. ThotMmd{b)i
Norris v. Cooke (o) ; Bradford ▼. RouUton (d) ; Blakefy v.
Smith (e) 'r Johnson y. Dodgson (f) ; Soames v. S^»encer {g).
The contract was stated in the petition, and the entries which
were merely eyidence of it need not have been put in issue.
The respondent had actual and constructive notice of the con-
tract : Le Neve v. Le Neve (A) ; Jones v. ^SimtM (t) ; West v.
Read (A) ; and took by the terms of his conveyance expressly
subject to it: Tayhr v. SHhberi (/) ; Bamhart v. Greenshields (m).
The registration of the conveyance gave him no higher right,
for the Registry Act applies only where there is a oonfiict between
two deeds; and there can be no conflict where one is stated to
be expressly subject to the other: Gilman v. Croshy{n).
Mr. Serjeant Lawson, Mr. Brewster and Mr. Jellett^ for the
respondents.
The terms of the contract are not clearly before the Court. In
order to induce the Court to enforce a contract on the ground
of part performance, the terms of the contract must be clear.
(c) 4 Bing. 722.
(c) 7 It. Ch. Rep. 37.
(0 11 Sim. 150.
(9) 2 D. & B. 053.
(0 1 Hare, 60.
(0 2 Vce. jnn. 487.
(6) 6 Sc, N, B., 8W.
(<0 8 It. Ch. Bep. 468.
09 2 M. A W, 663.
(A) 2 W. AT. 21.
(A) 2 Hare, 257.
(m) 2 Eng. Eq. Bep. 1217.
(n) 7 If. Ch. Bep. 557.
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512
CHANCERY REPORTS.
1860. precise, and definite, so as to leave no doubt whatever on the
^ V'.^ mind of the Court: Lord Si. Leonards on Ven, ^r Pur., p. 126;
^^^ Reynolds v. Waring {a). There is no notice in this case which
V.
Argument,
o'coNNOR. would make the alleged contract binding on a purchaser under a
registered deed. To have that effect, the notice must be of such
a description as to affect the purchaser with fraud: Hamilton y.
Royse(h)\ Smith v. Smith (c); Pqpham v. Baldwin (d); Jol-
land V. Stainbridge {e) ; Hine v. Dodd(f). Taylor v. Stibbert(ff)j
and Stoughton v. Croshie{h\ were decided on the principle of
avoiding circuity of action ; which principle does not apply to this
case ; for the respondent's conveyance was subject only to existing
leases and lettings. This was not an existing lease or letting:
Townsend v. Mostyn{i). Going into possession is not a part
performance of the contract, unless it be done in pursuance of
it: Brennan v. BoUon{k)\ Parker v. Smith (t). Here, when
possession was given by Holland, the terms of the alleged con-
tract had not been settled.
1861.
Apnlld.
Judgment,
The Master of the Rolls.
The petition in this case is for the specific performance of a
contract for a lease, alleged to have been entered into by Robert
Bayly with the petitioners, in the year 1850. It was (as alleged
in the petition) thereby agreed that the said Robert Bayly should
make a lease to the petitioners, of part of the lands of Ballymac-
awhim, in the county of Kerry, for a term of thirty-one years
from the 25th of March 1850, at a rent of £100 a-year, and on
payment of a fine of £100. It is not alleged by the petition that
there was any written agreement signed by the said Robert Bayly,
or by any person authorised by him. But the petition alleges that
one Howard Holland, as agent of the said Robert Bayly, after
giving the petitioners the possession of the said lands, made an
(a) Tonnge, 246,
(c) 2 L. R., N. S.. 157.
(0 3 Vcs. 478.
(g) Ubi supra.
(0 26 Beav. 72.
(b) 2Sch. &Le£:327.
((/) 2 Jones, 32a
09 2 Atk. 275.
(A) 5 t. Eq. Rep. 451.
(A) 2 Dr. & War. 240.
(0 1 Coll. 624,
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CHANCERY REPORTS. 513
entry or memorandum in writing, in what has been called a field- 186L
book, of the terms on which he gave the petitioners possession
of the said lands ; and which entry is in those words : — *' I have
this day, on the part of Robert Bayly, Esq., of Cork, let to Mrs.
Catherine Rice and Mr. Henry Rice her son, both of O'Domey, Judgments
in the county of Kerry, (he farm of Ballymacawhim, as late in
the possession of Matthew and John Bunyan (except Daniel
Glavin's lot, which they are not to have until September next),
for £100 fine, and £100 a-year, for thirty-one years from the
26th of March 1850, with turf for said farm on the lands of
Aghamore, as soon as Mr. Bayly gets possession of it; and given
possession to Mr. Henry Rice of the said lands and houses, except
one cabin held by J. Hussey." This entry was not signed or
dated; but it appears to have been made on the 25th day of
April 1850.
Howard Holland was not the agent of Robert Bayly. The
agent of the property was his son, Francis Robert Bayly; and
Howard Holland was the bailiff.
Robert Bayly sold the lands of Ballymacawhim, amongst other
lands, to the respondent Thomas O'Connor, by deed of conveyance
of the 24th of March 1858 ; and the deed was registered on the
7th of April 1858. The petition puts in issue matters to show that
the respondent had express notice of the alleged agreement, before
the date of the conveyance of the 24th of March 1858, and before
the payment of the purchase-money. I am of opinion, however,
that the respondent had no such express notice. On the contrary,
the communications made to him by Mr. Francis Robert Bayly were
calculated to lead the respondent to believe that there was no con-
tract or agreement with the petitioners. The answer of Mr. F. R.
Bayly, on his tfiva voce examination, to the hundreth question, is
clear on this point ; and his letter to the respondent, of the 24th of
October 1857, is a distinct allegation that there were no leases,
except to a Mr. Rice (not the agreement in question), and to a Mr.
Mason.
The memorandum in Holland's book was made on the 25th of
April 1850; and the letter of Mr. Francis Robert Bayly, of the
VOL. 11. 65
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514 CHANCERY REPORTS.
1861. following day, is relief on by the respondent's Counsel as showing
V— y '»,/ that Holland had no authority on the 25th to enter into any
contract with the petitioners* The only witness produced for viva
o'coNNOB. voce examination, or examined by the petitioners, was Mr. Francis
Judgment, ^^^ Bayly, although Mr. Robert Bayly was in Court. Holland
was not produced or examined, as he ought to have been. It was
supposed, during the examination of Mr. F. R. Bayly, that the
entry by Holland in his field-book, which is the document put in
issue by the petition, was signed by Holland; and the case was
argued on that assumption. It was the duty of the petitioners to
have had Holland in attendance, and to have produced the field-
book. Some days after the examination had closed, the field-book
was produced; and it turned out that the entry was not signed.
The petitioners' Counsel then sought to rely on an entry in a book
kept in Mr. Bayly's office, stating the letting to the petitioners, and
which, was initiated by Holland with the letters " H. H. ;** and that
entry was relied on by the petitioners as evidence of a contract
reguli^rly signed, as required by the Statute of Frauds, by an agent
of Mr. Robert Bayly. It is important, in considering whether
the respondent is bound by the alleged contract, having regard to
the terms of the deed of conveyance to him, to which I shall
just now advert, to ascertain whether the contract, if any, with
the petitioners, was a contract duly executed under the Statute
of Frauds, or a contract unsigned, which, with part performance,
might have been enforced against Mr. Robert Bayly.
The respondent, by his answering aflidavit, denies all notice
of the alleged agreefment until after the purchase made by him ;
#
and he denies the facts relied upon as evidence of notice. The
first difficulty under which the petitioners labour is, that the
evidence of the contract is very contradictory. In the former
petition, filed by the petitioners against the respondent and Robert
Bayly, in September 1859» the contract was alleged to. be an
agreement for a lease for thirty-one years, with totie$ quoiie$
covenant for renewal. The petitioners entered a rule to dismiss
that petition, after the answering affidavits were filed. In an
affidavit made by the petitioners in this matter, and filed the
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CHANCERY REPORTS. 516
18th of August 1860, the contract is stated to have been for a 1861.
lease for thirty-one years, or the life of the petitioner Henrj, v^-^v '
SICE
with a Mies quotiei coTcnant for renewal. Another statement ^
of the contract is made in the affidavit of John R. Rice, filed o'connor.
the same day, on the part of the petitioners, he having been pre- ' j^idgment,
sent when Howard Holland gave possession to the petitioners;
and he states the interest to have been for thirty-one years, or
the life of the petitioner Henry, ** or the option of taking a lease,
with a totie$ quoiies clause.''
In Lord Si. Leonards* work on Ven. fy Pur., p. 1 26, it is stated that
** A growing reluctance is manifested to carry parol agreements
into execution, on the ground of part performance, where the terms
do not distinctly appear ; and although, according to several author-
ities, the mere circumstance of the terms not appearing, or being
controverted by the parties, will not of itself deter the Court
from taking the best manner to ascertain the real terms, yet the
prevailing opinion requires the party seeking the specific per-
formance in such a case to show the distinct terms and nature
of the contract."
It appears to me that the entry in the office-book, signed by
Howard Holland, and which is not put in issue, cannot be relied
on by the petitioners in this suit, and that the case must rest on
the entry in the field-book of said Howard Holland, which is put
in issue, and which was not signed. The respondent is a pur-
chaser for valuable consideration, and (as I condder) without notice
of the petitioners' claim ; and, I think, his Counsel are entitled to
insist that evidence of a written document not in issue should not
be received. If the document not put in issue, and to which the
initials '' H. H." are affixed, had been relied on, some important
questions would have arisen upon it, and which would, no doubt,
have been raised if the document had been referred to in the petition.
Assuming that the petitioners can be permitted to rely on
the contract stated in the petition, having regard to the eon"
tradictory statements made by them in the former and in the
.present suit, as to what the contract was, the question arises,
whether the contract, as alleged in the peUtion, and entered in
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516 CHANCERY REPORTS.
1861. the field-book, and which was not signed bj Robert Bayly, or
\m ■' y *■ ' by any person on his behalf, is binding on the respondent? Of
course it is clear, from the cases of Popham t. Baldwin and Wyaa
o'coNNOR. y. BaitweU^ and other cases,* that if it were not for the provisions
j^j^jjj^^ contained in the oonveyance to the respondent, which was ^^ subject
to the existing leases and lettings made to the undertenants of the
said Robert Bayly," the petition could not be sustained, supposing
I am right that there was not that " clear and undoubted notice "
which is necessary to affect a party claiming under a registered
deed.| The question, therefore, is whether the contract relied on
by the petition, which is an unsigned contract, with part per-
formance, is enforcible against the respondent Thomas O'Connor,
by reason of the provision in the conveyance which I have stated ?
I am of opinion that, if the petitioners had obtained a lease from
Robert Bayly, or if they held under a contract from him, duly
signed under the Statute of Frauds, by himself, or his agent
duly authorised, such lease or contract would have bound the
respondent O'Connor, having regard to the provision in the con-
veyance which I have stated ; but I am of opinion that an unsigned
or parol contract, with part performance, was not an ^'existing lease
or letting," within the meaning of the deed. There is a very obvious
distinction between a letting which is a binding contract under the
Statute of Frauds, and one which can only be enforced with part
performance; that is to say, between an equitable estate and an
equitable right*
The terms of the conveyance, '* subject to existing leases or
lettings," would, I think, include an equitable estate created by a
contract duly signed under the Statute of Frauds ; but a parol or
unsigned contract, to be enforced only if there has been part per-
formance, is not, in my opinion, <* an existing letting," within the
meaning of the conveyance to the respondent. -This subject was
carefully considered by the Court of Exchequer, in Orpen v.
Moore (a). Chief Baron Joy, in giving judgment, stated that
(a) 2 Jones, 442.
* See Sngden on Yen. & Piir.» Idth ed.» p. 600.
tlWd.
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CHANCERY REPORTS. 517
" A title founded on the doctrine of part performance cannot be consi- 1 86 1 .
RolU.
dered as an equitable estate or interest until it has been established >^^w^
KICK
by a decree of a Court of Equity/' The judgment of Baron ^^
Richards, in that case, puts the matter in a very clear point of o'connob.
view, and was approved of by Baron Pennefather* In The King v. j^idgmeiu.
Toddington (a)f Judge Hokoyd adverted to the same distinction
between an equitable estate and an equitable right to have a convey-
ance of the legal estate, as adverted to by Chief Baron Joy in
Orpen v. Moore. The case of The King v. Geddington (5), and
the case of The King v. Long Berrington^ therein referred to,
are to the same effect. It was decided, under the Civil-bill Act,
which authorised an equitable defence to an ejectment, that although
an equitable contract, duly signed under the Statute of Frauds, and
stating fully the terms of the agreement, afforded a defence to the
ejectment, yet a contract which was not signed as required by the
statute could not be relied on with part performance. There is a
plain distinction between an equitable estate and a mere equitable
right to enforce the performance of a contract, with part perform-
ance, which, as Chief Baron Joy observes, does not become an
equitable estate or interest until it has been established by a decree
of a Court of Equity.
It may further be observed, that part performance is allowed
to be relied on in Equity, because otherwise the Statute of
Frauds would be made an engine of' fraud ; * but part perform-
ance does not, I apprehend, affect a remainderman under a
settlement, against whom the contract of the tenant for life, who
has a leasing power, is sought to be enforced : Shannon v. Brad*
etreet (c) ; Morgan v. Milman {d) ; Sugden on V. and P., 13th ed.,
p. 128.
On that principle, why should part performance be allowed as
admissible against a bona fide purchaser without notice? The
defence of the Statute of Frauds is not an unreasonable defence to
(a) 1 B. & Aid. 565. (6) 2 B. & C. 135.
(c) 1 SdL & Lef. 72. (<0 3 De G.. M. & G. 33.
* Sugden on Vendors and Purchasers, 13th ed., p. 123.
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518 CHANCERY REPORTS.
1861. be relied on by the respondenti ander the oircamstanoes of this
BoiU.
»^^v— / case.
*^^^ I offer no opinion whether, on a petition properly framed, stating
o'coNNOB. the entry in the office-book, with the initiab " H. H.,'' in Howard
Judoment Holland's handwriting, he being only the bailiff and not the agent of
Mr. Robert Bayly, such entry could be relied on as an agreement
duly signed by the authorised agent of Robert Bayly.* Robert
Bayly was not examined by the petitionerSi although he was in
Court. Whether the entry in the office-book could be considered as
a contract I am not bound to decide, unless I allow a case to be
proTcd which is not made by the petition.
On the whole, I am of opinion that, on the case made by the
petition, the respondent, as a purchaser under a registered deed,
without express notice, is entitled to have the petition dismissed,
unless the unsigned agreement, with part performance, was an
^* existing letting," at the date of the conyeyance to the respondent,
within the meaning of the conveyance. I think it was not ** an
existing letting,** as there was no estate or interest at Law or in
Equity created by such unsigned agreement, although accompanied
by part performance; and the petition must, therefore, be dismissed
with costs.
* See Ridgeuay t. Whmim (6 H. of L. C. 238), as to agent's aathori^ to
contract; and CoUm ▼. Qurduter (21 Bear. 640).
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CHANCERY REPORTS. 519
1861..
X. E. Covrl.
%unrft\f mttLtti Court
In the Matter of the Estate of
HARRIETT GARDINER, Owner/
JOHN GARDINER, PetiHoner.
JWM \5m
This case (the facts of which appear fiillj in the judgment) arose <m a, tenant for
a motion to make ahsolute the conditional order for sale. ^^^ power
of chan^g
£1000 thereon
The SolteUor-General and Mr. Alexander Graydon. for the '°'n^?T!L
^ ' xue), wnn ro-
petitioner. mamder (in
*" the erents
There is nothing in this case to preyent the order beintr made which hap-
^ ° pened) to his
absolate. The petitioner's charge of £1000 is not merged by the daughter B in
taQ male, by
operation of the deed of the 9th of April 1853, but the conveyance a deed, for
Tahie, con-
is made expressly subject to this charge ; and, therefore, the prin- yeyed the
ciple of Drew v. Lord Narbury (a), and that dass of cases, that his hiterest
where a party executes a deed in one character he executes it in gj^^ ^ '
all, does not apply. Sfto^l
charge of
£1000, and
Mr. Serjeant Sullivan and Mr. A. Norman, for the owner. covraanted for
^ ' • good tide.
The owner does not dispute the petitioner's title to this sum of qniet enjoy-
ment and
£1000 ; but maintains that he cannot raise it during his lifetime, farther asnir-
anoe. B soh-
since, by special contract between the parties, this sum is pledged seqnently be-
to the owner during the petitioner's life. The deed, of the 9th of chaser of a
April 1853 conveys all the petitioner's estate and interest in the £3^, entered
lands comprised in the petition ; and the words '* subject te the beforo^date
of the conyey-
ance. — Held, that although the effect of the conveyance was not to meige
the charge daring the liietime of A, yet that the petition mast be dismissed
with costs, on the principle of Eqoi^ that a tenant for life, having a cfaaige
on the ii^ieritance for his own benefit, cannot deal with it so sb to pre-
judice a judgment creditor on his life estate, and also becaose, under the
covenant for qoiet enjoyment, A was bound to indemnify B against the indg-
ment, the amount of which he must ptiy befoie he could raise his duuge
of jElfOOO.
(a) 3 Jones & Lat. 267.
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520
CHANCERY REPORTS.
1861.
£. E. Court.
s—v '
In re
GARDINER.
Argument,
principal sum of £1000'' are merely inserted to show that it was
not intended to destroy this charge after the death of John Gar-
diner. The conveyance of the 9th of April 1863 is also made
subject to the charge of £4600, which is admittedly not a charge
on the life estate, and this shows the object of alluding to the £1000.
He referred to John$ton v. Webster (a) \ Drew v. Lord Nor-
bury (b) ; Walpole v. 3PCliniock (c). — [Lonqfield, J. Johnston
T. Webster does not apply, as in that case there was a clause that
the charge should, in the event which happened, sink into the
residue.] — ^In addition to the foregoing reasons, this order cannot be
made absolute against the owner, since she is assignee of the judgment
for £3000, and, therefore, entitled to be paid the amount of it by
the petitioner, before he can proceed to sell the estate.
June\9.
Judgment.
LONOFIELD, J.
The petition in this case has been presented by John Gardiner,
the father of the owner, for the sale of the estates comprised therein,
and for payment, out of the proceeds of the sale, of a. sum of £1000,
and interest, to wUich the petitioner alleges he is entitled. On this
petition a conditional order has been made, against which the
owner Harriett Gardiner has shown cause. The facts of the case
are simple. On the marriage of the petitioner with Elisabeth
Cuffe, his first wife (since deceased), the lands the subject of the
petition were settled by an indenture of the 11th of May 1819)
subject to the life estate of the father of the petitioner, to the use
of the petitioner for life, with remainder to the sons successively in
tail male, with remainder to the daughters of the marriage, as
tenants in common, in tail male. And by this indenture power was
|iven to the petitioner to charge, by mortgage or otherwise, the
said lands with a sum of £1000, late currency, for such purposes as
he might think fit. Elizabeth Cufie died a few years after, leaving
Harriett Gardiner the owner the sole issue of the marriage, who
thereupon became entitled to the said lands, as tenant in tail male in
(a) 4 De G., M. & G. 474. (b) Ubi supra.
(f) 7 Ir. Eq. Bep. 853.
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JudgmenU
CHANCEET REPORTS. 521
remainder expectant on the decease of the said John Gardiner. 186L
T V Court
In the year 1827» Hannah Gardiner, a sister of the petitioner, mar^ ^ \ *'
ried, and, bj an indenture of the 22nd of October 1827, executed Q^^^£|f
previously to her marriage, the petitioner exercised his power to
charge £1000 as a collateral security for his sister's portion of
£1000, as doubt was entertained whether her portion was well
charged upon the land ; but the deed provided that, on the payment
of the portion of Hannah Gardiner out of the principal fund, the
said sum of £1000 should belong to the petitioner absolutely. It
was not, perhaps, very prudent in John Gardiner to execute this
deed, as by so doing he spoiled his title to the charge, at least until
his sister's portion was satisfied. John Gardiner, the petitioner,
married a Second time in 1832; an ante-nuptial settlement was
then made between the said John Gardiner, of the first part,
Eleanor Knox Gr(»e (his present wife), of the second part, and
James Knox Gore and Charles Nesbitt Knox, trustees, of the third
part, and which was dated the 11th of September 1882. As John
Grardiner was but tenant for life, he could only provide for his
second wife, and her children, by means of his interest in the
charge of £1000, or by insuring his life. Accordingly, by this
deed the charge of £1000, and two pdicies of assurance, one on
the life of one Thomas Pahner for £3000, and the other on the
life of the petitioner for £1000, were made the subject of settlement.
The trusts of the two policies were for the benefit of the issue of
the marriage, and an annuity was granted to the trustees out of the
said lands, to pay the premiums on the two policies, and also on
another policy for securing an annuity of £300 per annum to the
petitioner's wife, in case she should survive him. As it was pos-
rible that the petitioner might die during the lifetime of Thomas
Palmer, it was necessary to provide an additional fund for the pay**
ment of the premiums on the policy of £3000; and, therefore, the
trusts declared of the charge of £1000 were, out of the income,
to pay the premiums on the last mentioned policy; but on pay-
ment of the policy of £8000, to pay the principal to the petitioner
absolutely. Thus the petitioner was entitled to the charge of
VOL. 11. 66
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522
CHANCERY REPORTS.
1861. £1000, subject to the trusts of the deeds of the 22nd of October
L. E. Court,
^-— / 1827 and the 11th of September 1832. It appears, from the
In re
GARDtN£B. affidavit of the owner, filed as cause against the order, that in 1847
_"; she was unable to obtain any allowance or means of support from
Judgmentm
her father, with whom she did not reside ; and that, for the purpose
of ensuring a maintenance, she agreed with him that, in considera-
tion of his granting to her an annuity of £200 a-year out of the
lands, during their joint lives, she would charge her estate in
reminder with £4500 for the children of her father's second mar-
riage. A deed was executed to carry out this arrangement, dated
the 26th of January 1849, and made between John Gardiner, of
the first part, Harriett Gardiner, of the second part, Keith Hal-
lowes, of the third part, and James Knox Gore and Ernest Gk)re
(trustees of the settlement of 1832), of the fourth part, by which
John Gardiner granted to Harriett Gardiner an annuity of £200
out of the said lands, during their joint lives, and Harriett Gardiner
charged her estate in remainder with £4500 for John Gardiner's
children. This £4500 was substituted for the two policies of £3000
and £1000, for the trustees released the two policies from the trusts
of the settlement of 1832. A question might, pei'haps, arise, in
case the £4500 was not well charged, how far the release of a
mere trustee could operate ; but, on this motion, it is immateriaL
By this deed the children of the second marriage were gainera by
£500, and the life estate was freed from the burden of keeping up
the two policies ; or, if they were kept up, it was for the benefit of
the petitioner ; the charge also of £1000 was freed. In this last
indenture there is mentioned a judgment obtained against the peti-
tioner by one Alexander .Clendinning, in the year 1847, in the
penal sum of £3000, and it ia expressly excepted from the covenant
for good title.
The annuity of £200 fell into arrear, although John Gardiner
covenanted to pay it. Miss Gardiner then took steps for the
recovery of the arrears, in which I presume she was well advised ;
she did not resort to the lands, but proceeded against her £aither
personally, and obtained a judgment against him for £325, by
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CHANCERY REPORTS. 523
virtue of which she could at any time have arrested his person, 1861.
Z. E. Courts
or taken in execution his chattels. In this state of things a ^ , '
, . r Jn re
memoranda m of agreement, and an indenture m pursuance there- oabdineb.
of, were made, dated respectively the 26th of February 1853, " —
and the 9th of April 1853, by the former of which it was agreed
that the petitioner should assign over his life estate to the owner,
and that on such assignment Harriett Gardiner should' release the
person and effects of the petitioner from the judgment for £325, and
enter into a covenant to resort solely to the lands for the payment
of the annuity of £200. By the formal deed of the 9th of
April 1853, John Gardiner granted the said lands, and all his
estate, right, title and interest therein, to a trustee in trust for
Harriett Gurdiner, subject to the principal sum of £1000 of the
late currency, the sum of £4500, and as well the arrears, as also
the accruing and future payments of the annuity of £200; and
also subject to the judgment for £325. This indenture contains
covenants by the said John Gardiner for good title, quiet enjoy-
ment, and further assurance. The owner does not question the
right of the petitioner to this charge of £1000, but contends that
he is precluded from raising it during his own life, as it is merged
daring that period by the effect of the conveyance of 1853. Thb
deed prima facie conveys all the interest of the petitioner, and
the charge could not be raised during his Kfe, were it not for the
words "subject to the sum of £1000." It is curious that the
conveyance is made subject to the £4500, which was not a charge
on the Mfe estate, and to the annuity of £200, and judgment for
£325; but these two last are probably mentioned in order that
the owner might derive under them whatever priority she could
to puisne incumbrances. I am of opinion t^at the effect of this
deed was not to merge the charge of £1000 during the life of
John Gardiner. It is true that in the memorandum of agreement
no allusion is made to the charge; and the formal deed purports
to be made in pursuance of the agreement ; but the parties were
at liberty to add to the deed anything omitted or forgotten in the
agreement. This is not the case of a settlement after marriage.
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524 CHANCERY REPORTS.
1861. made in parsuanoe of marriage articles ; there the artidea oontiol
wly- — * the settlement, and nothing can be inserted in the latter which will
OABDisEB. ^ ^^^ favonrable than the articles to the issue. It appears, how-
Judgment,
ever, that Alexander Clendinning, the connsee of the judgment for
£3000 (or rather his assignees, for he became a bankmpt), obtuned
a receiyer over the lands, and the receiver was in 1851 extended,
on the petition of Harriett Gkurdiner for the payment of the arrears
of her annnitj. This shows that she had foil notice of Clendinning's
judgment; and the question arises whether she, as assignee of this
judgment, can set it up against the charge of £1000, or whether
any peculiar equity arises from notice, which would prevent her
from doing so?
Miss Gardiner found it expedient to purchase for £600 Clendin-
ning^s judgment, on which about £2000 was due — the assignees, no
doubt, thinking it was the full value, as the probability of payment
in full was doubtfuL This judgment was accordingly assigned to
the owner, by an indenture of the 9th of August 1854. There is
nothing peculiar in this assignment, except that John Gardiner is
a party to it, and that Harriett Gardiner covenants not to issue
any writ of capias or ^fisri facias, or seize under execution the
personal property of the said John Gardiner, but that she would
resort to his real estate alone for the payment of this judgment
I am of opinion, on all the facts, that the cause shown must be
allowed with costs. John Giirdiner is prevented from raising the
£1000 during his life, by reason of the owner being assignee of
Clendinning's judgment There is nothing contained in any of
the documents before me which would have enabled John Gardi-
ner to raise the interest on the charge of £1000 during his life.
He could not have assigned the charge so that his assignee could
have recovered interest, for Clendinning's judgment is prior to it
in equity ; for it is settled law, and the principle has been fre-
quently followed here, that a tenant for life, having a charge on
the inheritance for his own benefit, cannot deal with it in prejudice
to a judgment creditor on his life estate ; the only exception to this
rule being in the case of a purchaser for value without notice:
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CHANCEBT BEPOBTS. 525
In re Philipt{a). It ia contended bj the petitioner that the 1861.
owner purchased the judgment with full notice, and that, therefore, >^ — ^v ' '
she is prevented from availing herself of any advantage the judg- oardineb.
ment might otherwise give her. No doubt she had notice, but I j^JIIZ^
do not think that affects the case. Notice has onlj two effects.
Firstly, it prevents objections to carrying out a contract on the
ground that the thing contracted for is not iii the condition in
which it is described in the contract ; as, for instance, if I con-
tract to buy a house the roof of which is out of repair, notice, at the
time of the contract, of this defect, will prevent me from objecting
to the contract. Secondly, notice of a prior valid equitable incum-
brance prevents a subsequent incumbrancer from getting in the
legal estate, and setting it up against such prior equitable interest.
Notice does not operate in either of those ways in the present case.
By the express terms of the deed of 1853, John Gardiner, having
covenanted for quiet enjoyment, was bound to indemnify the owner
against this judgment; and although his person could not have
been arrested, or his goods and chattels seized on account of the
covenant in the assigment of the judgment of 1854, the action on
the covenants in the deed of 1853 was not gone, and she might
still resort to his assets or to his other estates, if he had any, to
indemnify her against this judgment. The covenant for quiet
enjoyment in the deed of 1853 was broken by the receiver being
in possession, or any other person coming in under John Gardiner.
Let me suppose that the order is made absolute, and the estate sold,
how should I distribute the purchase-money? The judgment of
Clendinning is a charge, and the first charge, on the life estate of
John Gardiner. The value of the life estate should be calculated,
and out of it Clendinning's judgment should be paid, since it has
priority over the charge of £1000, except in &vour of any of the
parties claiming under either of the deeds of 1827 or 1832, but in '
favour of no one else ; the surplus of the money representing the
life estate (if any) would be paid to Harriett Gardiner. The charge
of £1000 could not be paid during the lifetime of the petitioner ; no
(•) 4 Ir. Chan. Bep. 584.
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526 CHANCERY REPORTS.
1861. doubt it is in existence, but it was vested in him for his own benefit
L, E. Court.
« at the time Clendinning's judgment was entered up, and, therefore,
In re
OABDiNEB. the latter obtains priority as respects the life estate. Then out of
Judgment.
the yalue of the inheritance the charge of £1000 would be paid;
but thereupon Harriett Gardiner would come in and say, I must
be recouped out of the life interest in the £1000 for the £3000
judgment being raised out of th6 life estate. It is therefore impos-
sible that John Grardiner could raise the £1000 unless he first paid
off Clendinning's judgment, which he is not ready to do. The
petition, therefore, is a most inequitable one, and the cause shown
must be allowed with costs.
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APPENDIX.
iHetroyoUtital tfon^i^torUl Court of flrmatlb*
OfiSce promoted hj the
LORD BISHOP OF DOWN AND CONNOR
^^
Rev. T. F. MILLER and Rev. S. G. POTTER.
G. J. Ball, Q. a, LLJ)^ W. F. Darley, Q. C, LL.D^ and
C J. Knox J LL.D.^ CoanBel for promovent. — Joseph Stock. Proctor.
G. Battershy, ^. C, LL.D., J. E. Walsh, Q. C, LL.D., and
E. Lindsay^ LL.D.y Counsel for impugnants. — A. Ormsby, Proctor.
1861.
Dr. Radclifp, V. G. Mareh2\.
These are causes of office promoted by the Bishop of Down and An inhibitioii,
Connor, against the Rev. Samuel George Potter and the Rev. Buhop'^dc-*
Thomas FiUwilliam Miller, the Vicar of Shankhill, otherwise Bel- sire, by the
r> • 1 im . •&«- Tk • i» « 1* • « ■ Vicar-General
fast, respectively. That against Mr. Potter is for publicly preaching of a diocese,
and assisting in the performance of Divine Service, in the parish "*^ undAr the
church of Belfast, called St. Anne's Church, without any license or Consistorial
authority of the Bishop for so doing, and also for setting at defiance ^^^* ^^e
the lawful command and prohibition of the said Bishop. And the clergyman
cause against Mr. Miller is, for permitting Mr. Potter so to preach, Si^^^^jL
and assist in performing Divine Service in said church, on Sunday in fact, the in-
12th of August I860, without any such license or authority, and for Bishop? aad ib
setting at defiance the lawful command and prohibition of the said °ot a jpdidal
Bishop, in violation of his oath of canonical obedience, and of his preyioos dta.
ordination vow. *i°"' --^ ®^"
shop of one
The causes come by letters of request from the Vicar-General of diocese has the
Down and Connor (in which ^ latter diocese Belfast is), in the pro- j^bj^ ' ^t ^
vince of Armagh ; both citations were returned on the 1 1th of pleasnre, and
September 1860, and both impugnants having duly appeared on assigned, a
the same day, articles were exhibited in each suit. beneficed and
licensed der*
The facts and documents alleged thereby having been admitted gyman of an-
by consent, impugnants, on the 13th of November I860, exhibited ^^ ^^
defensive pleas, on the admissibility whereof a long discussibn took ing or preach-
ing in his
diocese with-
out his license, though the clergyman has the leave of the Incombent to prMch
in hia church. A hoense to serve a cure in one diocese determines by the Cnrate
giving op the cnre, and leaving the diocese wherein he was residing. A nsage
of derg^en of diiBferent dioceses to occasionally assist one another, and preach
withoat the Bishop's license, is of no avail against his inhibition.
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11
Appendix.
1861. place-; bat, by reason of the pecaliar frame of the defensive pleas, no
owttf. • gii^^nQ^ry. decision could be made on the main qoestion in dispute
BP. OP DOWN between the parties. An order, therefore, was made, by which the
^' defensive pleas were admitted ; but all questions of law, as well as the
MILLER* *^ » 1 »
costs of the exception and argument, were reserved to the hearing.
Judgment. Additional articles were afterwards exhibited on the part of the
Bishop, which do not materially afiect the case ; and consents were
entered into for the admission of all material facts, and to have the
causes heard in Dublin, before me, without prejudice to the right of
appeal by either party.
The articles against Mr. Miller, who was instituted in 1848, 3rd
of January, charge that, at an interview at the office of the Vicar-
General, on Tuesday the 7th of August 1860, the Bishop informed
Mr. Miller that he could not consent to Mr. Potter preaching or
officiating in his diocese ; and, as admitted by consent, daring the
conversation, told Mr. Miller to write to Mr. Potter, stating that he
the Bishop did not wish him to preach in Mr. Miller's church ; and
that thereupon Mr. Miller suggested that the Bishop should write
to htm, Mr. Miller, stating what he wished, and which the Bishop
stated he would do. That, in pursuance of Mr. Miller's request,
the Bishop addressed the following letter to Mr. Miller: —
*' The Pakce, Holywood, Aug. 8, 1860.
"Mt dbab sib-— As I understand that yon have invited the
Rev. Samuel 6. Potter to preach in your church next Sunday, I
regret to say that I feel it my duty to inhibit him from so doing,
upon account of the sermon preached by him, in Down Cathedral,
on the 12th of July ; as I consider its tone and language, as reported
in the Downpairiek Reeorder^ calculated to stir up, rather than
allay, religious animosities between us and our Boman Catholic
brethren.
*' It has been my heartfelt desire and constant object to promote
brotherly love among all sects of Christians throughout my diocese, in
which object I rejoice to say I have had the co-operation of 'my
clergy ; and it would be a source of deep regret to me, and equally
90, I am sure, to all right-minded people, were those kindly feelings
which are springing <up amoi^t us to be checked or imperilled bj^a
repetition, from a pulpit in Belfast, of the language and sentiments
reported to be used by Mr. Potter in Downpatrick, or those which
he subsequently embodied in a letter recently published by him.
'< Under these circumstances, my duty, though painful, is clear ;
and I must, in consequence, inform you that I cannot consent to
Mr, Potter officiating in Belfast. I feel assured that you will
respect, even should you not concur in, my views, and that this ex-
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n
Appendix.
Ill
pression of my opinion will obviate the necessity of any more formal
intimation. — ^I am yours truly,
" RoBT. Down and Connor."
" To the Bcr. T. E. Mnxu, D.D."
In reply whereto Mr. Miller sent the following reply to the
Bishop : —
*« Bel&st, lOA August.
*' Mt Lord — ^I am in receipt of yonr Lordship's letter of the 8th
instant, in which yon intimate your intention to inhibit Mr. Potter
from preaching in the parish church, owing to the tone and language
of his sermon in Down Cathedral, on the 12th July. I beg to state
that I was present, with the Dean and Chapter of Down, on the
occasion, heard the sermon, and feel bound to testify to your Lord-
ship that no sentiment was uttered not perfectly in keeping with
our ordination yows.
** I have invited Mr. Potter to preach not a political but a charity
sermon. And of thia I am persuaded, that peace and charity should
form the golden woof binding the whole discourse ; and, I think, my
Lord, with all respect, that there were no grounds for pre-supposing
that there would be a repetition of the principles set forth in the
sermon at Downpatrick, the time and occasion now not suggesting
or requiring such.
'' I am, as your Lordship is aware, responsible for the balance of
a debt on one of the newly q^ted churches in Belfast ; and, but for
the kind indulgence of the Directors of the Belfast Bank, legal pro-
ceedings ere this would have been instituted against me. I showed
you on Tuesday the last notice which I had received from the
Bank; mine then is a difficult case.
^ But there is one of much greater difficulty still, and one which
to my mind brings regret, and that is, that I must diffisr from my
Diocesan on the subject of pulpit jurisdiction. I am under the im-
pression that the Incumbent has the sole control of his pulpit, and
that the Biahop would exercise authority not sanctioned by law, did
he try. to limit the freedom of the Incumbent in that respect. In
the maintenance, therefore, of what I believe to be my right, I
feel constrained, however reluctant I may be to differ from your
Lordship, to uphold the liberty of the pulpit, and allow Mr. Potter
to preach on next Sunday, as publicly advertised for the last week.—
I have the honor to remain, my Lord, your Lordship's faithful servant,
•« T. F. MlLLRR.*"
That, on the 11th of August, an inhibition under the consistorial
seal was duly served on Mr. Miller, peremptorily ordering him ntit
to permit Mr. Potter to preach or officiate in his parish church, or
1861.
C<mnat,Court.
BP. OF DOWN
V.
MILLER.
Judgment,
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iv Jppendix.
1861. parish, without the Bishop's license first had and obtained; but
J-.-. * asserting no reason for so doing, save that he was not licensed by
BF. OF DOWN the Bishop; and that, notwithstanding sach inhibition, Mr. Miller
^' permitted Mr. Potter to preach and officiate on Sunday the 12th
^ of August, contrary to his oath of obedience.
Judgment. The articles against Mr. Potter charge that Mr. potter, not
having any license or authority from the Bishop to preach or
officiate in the Diocese of Down and Connor, was, on the 11th of
August, served with an inhibition under the consistorial seal,
peremptorily ordering him not to preach or officiate in said
church or parish, or diocese, without the license or authority of
the Bishop. That, nothwithstanding such inhibition, he preached
and officiated in said church.
The defensive pleas allege that the authority given to clergy-
men at ordination is, according to the usages of the Church, a
sufficient authority to preach ; and that no other license to preach,
except in giving charge of a parish to an Incumbent or Curate, has
for a long time been granted; and if the practice ever existed, it
has ceased, and any canon requiring such has become obsolete.
That Mr. Potter was, in 1845 and 1846, ordained a Deacon and
Priest by the then Bishop of Down and Connor, and in 1845 was
appointed to the curacy of Cushendun, in such diocese, and in 1849
was appointed to the curacy of Stratford-on-Slaney, in the diocese
of Leighlin, and was licensed by the Bishop^ thereof to preach the
Word of God in that church, and was so qualified and authorised to
preach ; and that he did often aflerwards preach and officiate in Down
and Connor, without any objection being made by the Bishop of such
dioceses. That Mr. Miller heard the sermon on the 12th of July,
and believed there was nothing unorthodox or improper in it. That
there has long been an usage in the Church for such* clergy, being
duly ordained as aforesaid, to occasionally assist . in performing
Divine Service, and to preach in churches to which they have no
special appointment, when permitted or requested by the Minister
thereof, or churchwardens, so to do. That the Bishop had no law-
ful authority to prohibit Mr. Potter from so preaching, except for
just and lawful causes, which neither existed nor were alleged;
and that the inhibition was, therefore, void ; as also on the ground
of its having been issued under the consistorial seal, and purporting
to be in the nature of a judicial act, and penal, and that it was iU^al
to issue such without a citation, so that he might be heard to show
cause against the issuing thereof. The defensive pleas further state
the peculiar circumstances under which Mr. Miller was placed, as
admitted by the consent (Nos. 9 and 6 in the consent), and to be
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Appendix. v
noticed hereafter. The fifth article of Mr. Potter's plea states that
Mr. Potter held no benefice or cure in Down and Connor since 1849,
and that the Bishop, therefore, wcu not his Ordinary.
The preliminary objection to the validity of the inhibition, on the
ground of its having been issued under the consistorial seal, without
a previous citation, and of its purporting to be a judicial act, and
penal, is answered by reading the inhibition itself, which could not
be done on the argument of the exception. It does not purport to
be issued under a decree, nor to be more than the Bishop's prohibi-
tion against Mr. Potter preaching in his diocese until licensed by him.
It could not bind impugnants as a judgment not appealed from, so
as to prevent their questioning the Bishop's right to inhibit, as
would have been the case had it been a judicial act. Nor could
process have issued thereon to enforce its execution, or punish
Its violation, as if it were a judgment of the Consistorial Court.
The seal of the Court rendered it more formal, but did not convert
it into a judicial act. It in reality has little, if any, more effect than
the inhibition contained in the Bishop's letter of the 8th of August ;
and though signed by the Yicar-General, it was plainly, if not
admittedly, the Bishop's own act.
The Bishop claims the right to have inhibited Mr. Potter from
preaching in his diocese, without assigning any reason for his so
doing, save that he had no permission from the Bishop so to preach,
and was forbidden by him to do so. The Bishop, in his conver-
sation with Mr. Miller, and by his letter of the 8th of August,
assigned reasons for inhibiting Mr. Potter, based on a sermon
preached by him in Down Cathedral, on the 1 2th of July, and on
a letter afterwards published. Mr. Miller heard the sermon, and
considered that there was nothing in it contrary to his ordination
vows, which comprised that of ''banishing and driving away all
erroneous and strange doctrines contrary to God's word," relied
on in argument, and also that of ''maintaining and setting for-
ward," as much as lieth in him, ** quietness, peace, and love among
all Christian people, and especially among those committed " to his
charge. Whereas the Bishop, who took similar vows, seemed to
intimate that Mr. Potter's preaching was calculated to stir up, rather
than allay, religious animosities between Protestants and Roman
Catholics. But the Bishop has not inserted his^reaA>ns in his for-
mal inhibition, nor has he submitted same to this Court for its
opinion or judgment. Neither party hath produced or further
referred to the sermon or letter; nor does it appear that Mr.
Miller ever read the letter relied on by the Bishop, for he does
not mention having done so. Mr. Potter alleges, by his fifth article,
1861.
ConsUt.Court^
BP. OP DOWN
MILLEB.
Judgment.
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vi Appendia\
1861. that of late his sermons had been noticed in the public newspapers,
Conaist. Court. ^^^ ^j^^ Bishop did not object to any of them ; but he does not assert
BP. OF DOWN that the report referred to by the Bbhop's letter was incorrect
^* On the coqtrary, the attempt to hind the Bishop by such reports
* or notices would seem to support their accuracy; neither does
Judgment. Mr. Potter advert to the letter. Mr. Miller, who heard the ser-
mon, states, in hi9 reply to the Bishop's letter of the 10th of August,
^' that there were no grounds for pre-supposing that there would be
a repetition of the principles set forth in the sermon at Downpatrick,
— the time and occasion not suggesting or requiring such." Thus
it appears that there was a discussion and a difference of opinion
between the Bishop and Mr. Miller respecting the sermon 4n ques-
tion, which had been followed by Mr. Potter's letter. But the only
question submitted to this Court is, whether the Bishop or the In-
cumbent, or both, have the control over the pulpit, in the sense
assigned by Mr. Miller's letter, and not whether or not the Bishop
was right or wrong in the conclusion he arrived at ; on which ques-
tion no sound opinion can be formed, in the absence of proof of the
contents of that sermon and letter. There is no doubt but that a
preacher may do more harm than good by injudicious violence of
language, though his views be orthodox — [The Judge here referred
to the 3rd of the directions of King William 8, in 1695, to the Arch-
bishopaand Bishops of England, and to No. 3 of George 1, directions,
1714.] — But I disclaim any idea of imputing anything bordering on
violent or unbecoming language to Mr. Potter, never having read
his sermon, or the newspaper in which it was reported, or observed
upon.
The question thus raised involves considerations of much im-
portance to the Church. It is, whether or not an Incumbent
of a parish, with cure of souls, either with or without the church-
wardens, may lawfully permit another clergyman, not beneficed
or licensed in the same diocese, to preach or officiate in his church
or parish, after that clergyman, though in PrieslTs orders, and
beneficed or licensed in another diocese, shall have been inhibited
by the Bishop of the diocese wherein such church or parish is ;
and though no cause should have been assigned for such inhibition
summarily issued.
On the part of the impugnants, it is insisted that every
Incumbent has a well-established right to avail himself of the
occasional services of any other clergyman in Priest* s orders, par^
ticularly when beneficed or licensed in another diocese, and thai
the Bishop of that diocese into which the strange clergyman is to
be so introduced has no authority to prevent his so doing, or to
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Appendix.
VII
interfere in the matter, unless the strange clergyman should preach 1861.
unsound doctrine, or misconduct himself; in which case the Bishop y****^' ^^'
might proceed against him in his Consistorial Court (as any other bp. of down
person might). But that his summary inhibition issued without ^*
some charge bemg made and substantiated, after an opportunity
being given for defence, would be a nullity. Whilst on the part Judgment.
of the Bishop it is contended that no clergyman has a right to
preach or officiate in his diocese when not beneficed or licensed
therein, without his license or authority, express or implied; and
that the issuing of an inhibition against his so acting, with or
without cause assigned, concludes all question of implied authority,
and renders the clergyman preaching or officiating, after service
thereof, punishable for his contempt, and the Incumbent permit-
ting him to do so guilty of an offence against the Ecclesiastical
Law. There being no reported case in which the precise question
appears to have been decided, the arguments in support of and
against these positions w'ere in a great measure rested on what
Counsel on each side contended were, by force of the Ecclesiastical
Law — canons and usages of the Church — the relative positions of
Bishops and Incumbents, and the rights flowing therefrom, re-
pectively.
In order to arrive at a satisfactory conclusion on the subjects
in controversy, it will be necessary to consider the diocesan and
parochial system of Church government and discipline, which has
been adopted within the United Kingdom, so far as bears on the
questions in controversy. Originally there was but one diocese
(which was called paroehia), and no other parson but the Bishop
himself, who had the sole cure of souls of the entire diocese. In the
course of time that diocese was divided into several other dioceses,
and Ministers were ordained by the Bishops to assist them, and sent
out to serve the cure, and preach in the several districts assigned
to them by the Bishop for the purpose ; and the Bishop and clergy
resided together in the place where the church or cathedral was.
When churches were from time to time founded and endowed in
these and other countries, the Bishop sent out his clergy to reside
and officiate in these churches and districts annexed, which con-
stituted parishes, reserving, nevertheless, to himself a certain
number in his cathedral to counsel and assist him, who are now
called Deans, Prebendaries and Canons. But the cathedral con-
tinued as it had theretofore been, the parish church of the whole
diocese. The Bishop was the chief pastor of the diocese, or (as
termed by some), the Universal Incumbent, having the cure of
souls therein, and in every parish throughout same, and there-
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VIII
Appendix.
1861. fore the right of institution and collation of Clerks fo such parishes
CoMi8t, Court, ijgjQngg^ ^f common right to him. The Clerks so instituted or
BP. OF DOWN collated received the cure of souls therein, from and as assist-
^' ant to the Bishop, whose Curates thej were deemed to be, and
' they were for a great length of time designated by the name of
Judgment, Curates. Thej exercised under the Bishop all their rights of preach-
iog-— administering of Sacraments, and officiating in the parishes,
the cure of souls wherein was committed to them to be served in
person. The cure of souls was committed by the Bishop to the In-
cumbent, and not merely (as Bishop Stillingfleet observes, at p. 154,
jBccles, Cases) the care that Divine offices be performed in his parish,
and no other person could have been deputed to serve this cure
without the Bishop's license. The Bishop was the Ordinary also and
visitor of, and the chief superintendant over^ the whole Church within
his diocese, all the inferior clergy being bound to obey him as their
superior; and at a very early period were obliged to take oaths
of canonical obedience on being admitted to their cures or offices.
Preaching was deemed to be of great importance, and to be pecu-
liarly the duty of the Bishop himself, and he was enjoined by the
earlier constitutions and canons to be active in the discharge of that
duty. Formerly the inferior prelates and clergy could not lawfully
have preached without special authority from the Bishop, and which
authority or license was xevocable at his will and pleasure.
In process of time, however, when the parochial clergy were
better established, the right of preaching in their churches to their
congregation passed, as belonging to the cure of souls, by institution
or collation to the benefices and cures, after which the Bishop could
not, at his will and pleasure, deprive such Incumbents of their right
to preach, though no special license or authority had been granted
for the purpose; but, in other respects, his jurisdiction and right of
control over all other clergy within his diocese remained as before.
The Bishop had, moreover, the right, and used to license and send
preachers, though not beneficed, through his diocese, as assistants to
himself; and, by a canon of the Council of Lateran (under Inno-
cent III), c. 15, Bishops, particularly those having dioceses of great
extent, were directed to take to their assistance able preachers,
so that the people might be properly instructed. There were,
however, certain friars preachers — ^Dominicans and Franciscans —
who, by Canon Law, were entitled to preach everywhere they
should be sent by their superiors ; and the Augustinian and Carme-
lite friars were specially privileged to do so ; but all under certain
restrictions — such privileges having been conceded by the Pope
as supreme head and chief Ordinary. The Bishop had the power.
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Appendix.
IX
of his mere will and pleasure, to revoke the authority and license 1861.
granted to preachers sent by himself through his diocese, and gene- Constu. ourt,
rally, in like manner, to revoke, limit or modify any license or bf. of down
authority to preach, granted to any secular or regular not having ^*
benefieium euraiumf as contradistinguished from those who had cure
of souls granted by their institution ; it being considered that when Judgment
cure of souls was conferred on them, the right to do everything
necessary for service of such cure was conferred thereby; and,
therefore, that as preaching was an essential ingredient in the cure
of souls, the right to preach was also conferred by the grant thereof.
The Bishop was also authorised to send preachers to the church of
those having cure of souls, in certain cases of inability or unfitness
to discharge their own duty ; and he might also have sent preachers to
the churehes of persons having cure of souls in Lent and Advent. A
new church or chapel could not have been erected in any parish
without the consent of the Bishop ; nor could the Incumbent have offi-
ciated in any unconsecratcd building in his parish without the license
of the Bishop, though he had a right to do so in every consecrated
building within his parish, by virtue of his institution. Each Bishop
had the exclusive right of ordaining the clergy for his own diocese;
and orders conferred by strange Bishops, without letters dimissory
from the Bishop of the diocese to which the person so ordained
belonged, were deemed so irregular that the Clerks so ordained
were not permitted to exercise th^ir functions in such diocese with-
out a special dispensation from the Bishop thereof. It was also
established that the Bishop of one diocese should not exercise his
jurisdiction or episcopal office in the diocese of another Bishop,
without his license or authority expressly given. But, having a
general authority to preach everywhere, he might do so in any
other diocese, if permitted by the Incumbent, unless expressly pro-
hibited by the Bishop of that diocese from doiag so; and no
Priest or secular clergyman could have exercised his functions in
any diocese without the authority of the Bishop of that diocese ; and
the clergy of other dioceses were particularly enjoined not to do so ;
and the parish clergy were directed not to permit anyone to preach
in their churches without being satisfied of their having the license
of the Ordinary.
Whilst the constitutions of the~ Church protected the rights and
privileges of the -Bishop of the diocese, they also placed him under
restrictions, checks and control. It was at an early period decreed
that no Bishop should ordain any Priest or Deacon, without a
title, viz., a benefice, cure or office, nor unless he should be of an
b
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MILLBIl.
Judgment.
X Appendix.
1861. approved life, and sufficient for the full discharge of his office;
- >-J-— * * and the violation of these rules subjected the offending Bishop
BF.OFDOWN to sevcrc censures. The negligence of Bishops, in the discharge
of this important branch of their dutj, caused the enacting of a
canon of the Council of Lateran, a.d. 1172, viz.: — "That if any
Bishop ordains a Priest or Deacon, without a title, let him main-
tain him until he can make a clerical provision for him in some
church, except he be able to Hve of his own, or have a patrimony."
[Which is embodied in the 33rd canon of 1603, and 30th •of 1634].
These canons, on the subject of ordination, were not merely in ter-
roretn^ as appears from the forms in the Appendix to vol. 2 of
Gibson^ Nos. 8, 9 and 10. The beneficed clergy were also well
protected in their rights ; for, generally speaking, no other clergy-
man could preach or officiate in their churches without their permis-
sion. There would appear, however, to have been some exception
to the general rule, founded on the right claimed by the Pope, as
supreme head and Ordinary, of conferring the privilege of preaching
and officiating wherever he thought fit to appoint. The Bishop
might also have preached and officiated, whensoever he pleased, in
any church in his diocese; but he could not have displaced the
Incumbent, in favour of any third person, unless, perhaps, in the
special cases already adverted to, of his inability or unfitness, and
in order to exercise his episcopal privilege of sending Lent and
Advent preachers. The language of Van Espen, an able collector
of, and writer on, Canon Law, where he details the results of the laws
of the Church on this subject of episcopal control, is deserving of
special notice.
Thus, by canons from time to time made, and usage, as well
from the nature of the episcopal office, was generally established
in and throughout Christendom a well defined system of diocesan
and parochial order and discipline. By it the Bishop had the
care and superintendence of his entire diocese, in which no Priest
or Deacon was admissible to preach or officiate without his autho-
rity— this authority being conferred by institution, collation or
license, to benefices and cures, on the clergy to whom core of
souls was by him committed ; or specially by license or permis-
sion, as deemed fit by the Bishop. Strangers to the diocese (except
those who had certain privileges) were not entitled to discharge
their functions therein, without permission of the Bishop. But,
for the convenience of the beneficed clergy, as well as for the
advancement of religion, and by reason of the impossibility of
communicating with the Bishop, so as to obtain his special per-
mission in each particular case, as also, as it would seem, from
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XI
motives of Christian courtesy, the beneficed clergy were permitted
by him to receive the occasional assistance of such strangers as
might be in their parish, both in respect of preaching and offici-
ating. Special injunctions were, however, given, to ensure that no
stranger should be so admitted to preach or officiate, unless they
had evidence of their ordination, and letters from their own Bishop,
certifying to their faith and good life. Doctors in Theology were
among the privileged class, the University of Oxford having had pri-
vileges to license such as preachers, conferred on them at an early
period by the Pope, similar to thpse conferred on Cambridge, or
enlarged at a later period.
[In support of the preceding positions, the Judge, among other
authorities, referred to the following, viz. : Gastrel v. Jones^ Dod*
deridge, J. (2 Roll. Rep., p. 449) ; Vaughan v. Aacue^ Lee, C. J.
(2 Roll. Rep., p. 454); Eccl. cases (Stillingfleet), pp. 12, 13, 88,
143, 144, and preface thereto; 1 Bum^ pp. 196, 283; 3 Burn,
p. 73 ; Godol. Rep. Can., p. 23 ; Hooker, Eccl. Pol., lib. 7, c. 3, 8 ;
Plowd., p. 457 ; Ayliffe, pp. 125, 167, 401, 4, 6, 7 ; Moisy v. Hill-
coat (2 Hag., p. 46); Bliss v. Woods (3 Hag., p. 510); 2 Bul-
ling.^ p. 1055; Johnson (ed. 1850), part 1, pp. 195, 269;
X, 1, 22, 3 ; X, 3, 5, 4; 16, Q. 1, c. 41 ; 16 Q. 7, 11, 19; Lynd-
wood, lib. 1, tit. 10; Nullus Capellanus, /., verb., ignoti: lib. 3,
tit. 4, de cler. non resi. ; /. verb. Freed., verb. Dei, lib., 5, tit. 5 ;
De Heretieis in verb. Diocesan ; g. verb. Auciorizaius est ; R.
verb., Limitata in eo. I Van. Espen (ed. 1753), pars 1, tit. 16,
c. 5 (ss. 6, 10) ; c. 7 (ss. 3, 5, 7, 8) ; c. 10 (ss. 1, 2, 5, 6) ; c. 11
(ss. 1, 2, 6 to 14, 21, 22, 23).]
From time to time these general rules and constitutions of the
Church, having been adopted by Councils and Synods, and other-
wise, and become part of the Common Law of England and Lreland,
were specially enforced in these countries whenever their neglect
oT violation called for such a course ; and there were several canons
made by National and Provincial Councils, in both countries, for
such purposes, before the Reformation ; the earliest of the English
canons appearing to be those of the National pouncil, presided over
by Archbishop Theodore, which adopted a large portion of the
Canon Law of the Church. Some of these canons do not purport
to do more than provide for the enforcement of existing rules,
and provide some special or additional censure or punishment for
their non-observance, so as to introduce greater uniformity of
discipline in the Church of these realms. Sogie of them use
expresions respecting hospitality, referring to the custom of the
Bishops and clergy, when living in common together, to receive
1861.
Consist. Court.
BP. OF DOWN
V.
MILLER.
Judgment.
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xii Appendix.
1861. and entertaio all strange Bishops and clergy who should pass
ConsiBUCowrt, j.jjj^„gij ^^ diocese, and also of the parochial clergy, when
BP. OF DOWN they had more extensive districts under their charge.
^' The Council (National) under Theodore, Archbishop of Canter-
bury, assembled a.d. 673 (of which the whole proceeding is
Judgment, stated in 1st Jokru^ p. 88), adopts several of the canons of the
(Church ; No. 2 being that no Bishop invade the parish of another,
but be content with the government of the people committed to him.
No. 5 — That no Clerk, leaving his own Bishop, go up and down
at his own pleasure, nor be received whenever he comes without
the commendatory letter of his Bishop.
No. 6 — That strange Bishops and Clerks be content with the
hospitality that is freely offered to them ; and let not any of them
exercise any priestly functions without the permission of the Bishop
in whose parish he is known to be.
These canons, Nos. 2 and 6, follow and explain Nos. 26 and 28
of what are called the Apostolical Canons, some of the earliest
known. They are collected, as translated by Johnston^ in his Vade
Mecum, p. 19. At the Synod of Cealchythe, presided over by
Wulfred, Archbishop of Canterbury, a.d. 816(1 Johns,^ p. 300),
canone were made relative to the admission of strangers, in enforce-
ment of the existing law; No. 11, p. 307> being — " That (as it is
found in old times by tradition from ancient fathers) it would be
unlawful for any Bishop to invade the parish of another, or draw
any ministration to himself which belongs to another, excepting
only the ArchbUhopj because he is the head of his own Bishops.
But let others be content with their own, or act with the license
and consent of the Bishop in whose diocese they minister. If
anyone transgress in this respect; let him make satisfaction accord-
ing to the judgment of the Archbishop, unless he be willing, first, to
l>e reconciled to the proper Bishop of the diocese ; and we give the
same in charge to Priests, that no one covet more business than
is allowed to him by his proper Bishop^ excepting only in relation
to baptism and the sick," &c., &o* Though other canons were made
at subsequent Provincial SyBods of Canterbury, to prevent the
admission of unqualified strange preachers, which, so far, recognise
the practice of Incumbents permitting strangers to preach and
ofiiclate in their churches without any special license or authority
from the Bishop of the diocese, there is nothing to show that the
right of the Diocesan to prohibit any clergymau from so preaching
or ofllciating was ever interfered with or denied during such period.
In 1400-1, the first Act of Parliament^ 2 Hen. 4, c 15, requiring
preachers to be licensed (of which more hereafter) was passed ; and
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XIII
V,
MILLER.
in 1408 it was followed by the ConstitatioDS of Arundel: De 1861.
HeretieiSf 2 Johns^ p. 459, which, though merely provincial, contain ?**"^' ^^^'
enough to show that they only purported to enforce the ancient laws bp.opdoww
of the Church. It was thereby provided that no clergyman, unless
authorised by the Canon Law or special privilege, should preach
within or without a church to the people or clergy, "unless he Judgment,
present himself to the Diocesan of the place in which he attempts
to preach, and be examined, and then, being found qualified, &c.,
let him be sent by the Diocesan to preach to some certain parish
or parishes, as to the same Ordinary shall seem expedient." It
then vindicates the constitution from the imputation of having
been made for the sake of fees, and adds : — *' If any do knowingly
violate this our statute (which is only a putting the ancient law
in execution), after its publication, by preaching, of his own teme-
rity, contrary to the form herein mentioned, let him incur the
sentence of greater excomunication de facto.'* As this constitution
or canon most clearly applied to occasional preachers (Lollards
and others), though they preached in churches with consent of
the Incumbents, the declaration of the law is important.
The injunction as to the necessity of strangers bringing commen-
datory letters was repeated by No. 3 of Langfrands Canons, at
Winchester, a.d. 1071 ; and again, under the same Archbishop, in
1076, and also by Archbishop Reynolds' Constitution, 2 Johns^y
p. 333, A.D. 1322, and Lyndwood, p. 33 ; and was again enjoined by
Archbishop Arundel's Constitution at Oxford, a.d. 1408 ; 2 Johns.^
p. 469 ; Lyndiaoody p. 48.
At a Convocation held in the province of York, in 1462, it was
decreed — "That the Provincial Constitutions of Canterbury be
received and observed for law in York \ " so that the argument as to
the Constitution of Arundel, and others, having been in force in one
province only in England, is answered by the above decree of 1 462.
Throughout them all, the authority of the Diocesan, in respect of
preachers, is recognised as supreme, unless superseded by his superior ^
Ordinary, whether Archbishop or Pope. The Incumbents of parishes
in England and Ireland, having the freehold in their churches, had
also a remedy, by action of trespass, against anyone, in the Temporal
Courts, save their superior Ordinary, who should attempt to preach
or officiate in their churches ; which made their power of exclusion
stronger than if it only rested on Ecclesiastical Law: Turton v.
Reignolds (a) ; and this peculiar and exclusive right in the freehold
of his parish church is referred to by Sir W. Scott, in Duke of
Portland v. Bingham {h).
(a) 12 Mod. 420, 483. ' (6) 1 Hag., C. B., 161.
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Appendix.
1861.
V.
MILLEB.
Judgment.
V The Churches of £ngland and Ireland seem, from the earliest
period, to have been governed by the same rules and principles;
BF. OF DOWN and, so far was their identity carried out in other respects, that
one of the resolutions adopted by the National Synod of Cashel,
held after the arrival of Henry the Second in Ireland, a.d. 1172,
was, '' That all Divine Service in the Church of Ireland should be
kept, used and observed in like order and manner as it was in the
Church of England/' All the English statutes made against Pro-
visors were adopted here, first, in 1454, by the Irish Act of 32
Hen. 6, c. 1; and again, in 1495, by 10 ffen. 7, c. 5. There
appear to have been canons made from time to time at Councils
and Synods held in Ireland, similar to those made in England,
some whereof are still forthcoming, and are to be found in 1 Wilk.
Concilia, pp. 2, 548, 551, and in 1 WarCy pp. 315, 317. It appears
that Fitz Ralph, Archbishop of Armagh (according to Ware, p. 82),
was, between 1347 and 1360, engaged in an attempt to deprive the
friars of their privilege of preaching without the license of the
Bishop of the diocese ; and he also joined and co-operated with the
English Bishops for the like purpose, though they were all defeated
by the friars. The two Churches seem to have been dealt with by the
Pope, before the Reformation, as identical in discipline on the sub-
ject under consideration ; for, in 1503, Julian, Bishop of Ostia, by
authority of Pope Alexander YI, issued a Bull, granting to the
Chancellor of the University of Cambridge either new or increased
power to choose, in eacti year, twelve doctors, masters or graduates,
in Priest's orders, who, being deputed under the University seal,
might preach everywhere, ^^per iotum Regnum Anglite, Scotia et
HibemicB ; " save that they should not preach in the places where
the Ordinaries of the place preach, without their consent, and Chat
the license of the Ordinary of the place should not be required by
them — *' Consensu tamen Rectorum Ecclesiarum intervenienie."
This Bull is recited verbatim in licenses to preach granted there-
under in 1522, set forth in Appendix to Stripe's Life of Parker,
No. 35, book 3. From this Bull it is plain that the three Churches
were considered to have the same laws respecting the power of
Bishops over preachers in their diocese, and that none could preach
without the authority of the Bishop, or some superior Ordinary.
Queen Elizabeth, by Letters Patent, in the third year of her
reign, also in Appendix to Stripe, No. 38, after the Act of
1 Eiiz., c. 2 (Eng.)y and 2 Eliz., c. 2 (Ir.J, the Acts of Uniformity,
enforcing the observance of the Liturgy and Ordination Services of
Edw. 6, gives to the University of Cambridge " According to their
ancient custom, power to choose twelve preachers, as before, tod
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XV
send them to preach through Ejigland and Ireland" (omitting Scot- 1861.
land), and that the license of the Ordinaries of the place should not ^^"^^ r^'
be required ; but it makes reservation as to the consent of Rectors, bp. of down
and thus recognises the general rule, thereby dispensed with,
respecting the necessity of the license of the Bishop of the diocese ;
so that this authority of the Diocesan, which existed before the Refor-
mation, was not intended to be interfered with by the Ordination Ser-
vices of )Edw. 6, established by the then recent Act of Uniformity,
1 Eliz,^ c. 2, (Eng,)y it being thus distinctly recognised by Eliza-
beth's charters. The privileges granted to the University of Oxford
were of an earlier origin, and seem to be referred to by the notes
of Lyndwood^ already mentioned; but all these concessions to the
Universities prove the existence of the rule already mentioned,
respecting the Bishop's authority, and related mainly, if not only, to
occasional preachers. The Liturgies and Services of Edw, 6 were
adopted in Ireland, and enforced by the Act of 2 Eliz., c. 2, as in
England, by 1 Eliz^ c. 2 ; and the complete union of the Churches
of England and Ireland, in respect of doctrine, if not discipline, is
more fully discussed and established by Mr. Stephens, in his very
able opinion on The Repeal of the Twenty^ninth Canon (Eng.),
beginning at p. 45 of the 8vo printed copy. By the fifth article of
the Act of Union, 40 G. 3, c. 88 (Ir.), 6th August 1800, it is
enacted ' that the Churches of England and Ireland, as now by law
established, be united into one Protestant Episcopal Church, to be
called *' The United Church of England and Ireland," and that the
doctrine, worship, discipline and government of said United Church
shall be, and shall remain, in full force for ever, as the same are
now by law established for the Church of England; and that the
continuance and preservation of said United Church, as the Estab-
lished Church of England and Ireland, shall be deemed and taken
to be an essential and fundamental part of the Union." These
articles had been first adopted and enacted hj 39 & 40 G. 8, c. 67
(Eng,), 2nd July 1800; and thus the Churches of England and
Ireland as separate Churches have ceased to exist, there being now
only '* The United Church of England and Ireland" known to the
law, and which United Church is to be subject to the discipline and
government of the Church of England as it existed before the Union^
subject, of course, to subsequent legislation by the Imperial Parliament.
This right of the Bishop of the diocese to control the Incumbent,
in the admission of other clergymen to preach in his diocese, was
recognised by the Legislature, by the Act of 5 Rich. 2, c.«5,
AJ>. 1382, the first Act against the Lollards or Wickliffites ; which
recites that there were divers persons preaching through the country
V,
MILLEB.
Judgment,
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xvi Appendix.
1861. « without the iieetue of the Holy Father the Pope, or the Ordinariee
^ *-!^' ' of the place^ or other sufficient authority, preaching daily in the
BP. OF DOWN churches and churchyatdt^ &c., &c., which preachers, cited or sum-
^* moned before the Ordinaries of the place, &c., will not obey their
summons and commandment, nor care for the monitions or censures
Judgment, of the Holy Church, but expressly despise them," d^.; and then
enacts as therein, for their arrest and punishment. As such per-
sons preached in churches, it must have been with consent of the
Incumbents ; and the declaration of the law applies to such. This
was followed by 2 Hen, 4, c. 15, a.d. 1400-1, which recites that
persons preach, &c., ^' and that the Diocesans of the realm cannot, by
their spiritual jurisdiction, without the aid of the Grown, sufficiently
correct them, because they go from diooese to diocese, and will not
appear before the Diocesan ; and enacts that none within the said
realm, or any other dominions subject to the King, presume to
preach openly or privately, without license of the Diocesan of the
. same place first required and obtained ; Curates in their own
churches, and persons hitherto privileged, and other of the Canon
Law granted, only excepted ; " and then enacts other restrictions
and penalties. This Act of 2 Hen. 4 included private as well as
public preaching, for which former a license had not seemingly been
previously required ; but in other respects adopted the Ecclesiastical
Law on the subject of preaching, and enforced it by severe temporal
penalties, in addition to those of the Church. The exemption of the
*^ Curates in their own churches, and persons hitherto privileged^ and
other of the Canon Law granted," from the provisions of the Act, was
a distinct recognition of the rules of the Ecclesiastical Law respecting
the Bishop's authority, already stated, inasmuch a^ the privilege is
recognised as already existing ; and no such privilege could have
existed if there had not theretofore been an exclusion of all others,
not authorised by the Bishop, unless exempted from his authority in
that respect by privilege. The Act of 2 Hen. 4, like that of 5
Rich. 2, applied to persons who preached in churches as well as in
other places ;. and, as such persons could not have preached in
churches without the permission of the Incumbents, the case of
occasional preachers in churches is met by these Acts which declared
the Common Law, and enforced same by temporal punishments.
Though the Acts of 5 Rich. 2, c 5, and 2 Hen. 4, c 15, were
passed in England, they comprehended Ireland, under the words
'* within the realm, and all other dominions subject to His Miyes^."
It was not uncommon, at that early period, for the English Parlia-
ment to legislate for Ireland ; and these Acts of 6 RiA. 2 and
2 Hen. 4 appear, by subsequent Irish Acts, to have been received
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Appendix.
XVII
here. The 2 Hen. 4 was repealed by the 25 Ben. 8, c. 14 (Eng.)y
by which the earlier English Acta of 5 Rick. 2 afid 2 Hen. 5, o. 7,
against heresy, were Confirmed, and other provisions made on the
sabject of heresy. But the 25 Hen. 8 did not fartfaef interfere
with the laws relating to the licensing of preachers, which were
then left as they had been prior to 2 Hen. 4, to be dealt with by the
Ecclesiastical and Common Law of the Charch, mmfiected by legis-
lative control, save by 5 Rich. 2, and its recital. The repeal of
2 Hen. 4, by 25 Hen. 8, c. 14 (Eng.)^ was deemed safficient for its
repeal in Ireland ; for 8 <& 4 PhiL ^ Mary^ c 9 (It.)^ provides that
the Acts of 5 Rich. 2, 2 Hen. 4, c. 15, and 2 Hen. 5, c. 7 (all Eng.),
conceming the sappression of heresy, shoald, ^ from the first day of
the present Parliament, be revived^ and be in fall force and effect
for ever.'* The 2 Eliz.^ c. 1, s. 4 (Ir.Jy not only repealed the
3 & 4 Phil. Sf Maty^ but also the recited and revived Acts of
5 Rich. 2, and 2 Hen. 4, c. 15, and 2 Hen. 5, c. 7, and thus restored
the Common Law of the Church in Ireland, as in England, respecting
preachers, save so far as altered by the restoration of the supremacy
of the Crown, and the Reformation, by which the special privileges
fiowing firom the Pope and his encroachments were extinguished.
According to this restored Common Law of the Church of Eng-
land and Ireland, enforced, as it bad been, for upwards of 130 years
by the Act of 2 Hen. 4, no person could have lawfully preached in any
church without the authority of the Bishop of the diocese, express or
implred, or of the Archbishop, unless exempt therefrom by stich pri-
vilege (if any) as might be valid after the Reformation, or aftei' that
period might have been conferred by the Crown ; and though the
circumstances of & clergyman having been ordained, and formerly
lfcen<9ed in a diocese, would have rendered less particularity neces-
sary ia respect of his qualification, on the part of an Incumbent
about to avail himself of his occasional assistance, it did not deprive
the Bishop of his authority and right to prevent his acting. Even
such a clergyman, if he had left the diocese iot a length of time,
would seem to have placed himself in a position of those callea
*^ strangers," and be affected by the peculiar canons applicable to tha(
class : Lyndwoode Gloes. i7, terb. nonfiterit de Petegrinia cUrieis.
If a clergyman not beneficed or licensed in a diocese had been
expressly prohibited by the pishop thereof fVom preaching or offi-
ciating therein, atrd should have afterwards acted in disobediende
of saeh prohibition, he would, as before, have been guilty of a con-
tempt of the Bishop's authority, and punishable accordingly ; and
the Incumbent who, knowing of snch prohibition, had admitted him
80 to preach and officiate would have been guilty of, find* puniih-
1861.
Consist. Ccfurt.
Bf». OF DOW^
V.
MtLLEft.
Judgment.
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XVIU
Appendix.
186L able for, an ecclesiastical offence. This seems to be plain, as well
by reason of the position and authority of the Bishop in his diocese
Contut.Court.
BP. OP DOWN (already mentioned), and the necessary consequences thereof as
^' from the express and positive declarations of the canons. Sop-
MILLER. r r
Judgment,
pose such a person had been merely licensed by the Bishop to preach
through his diocese, without having been appointed to any parti-
cular cure, the Bishop might, according to the law already stated,
have revoked that license at his will and pleasure; which would
have been useless if, notwithstanding such revocation, the clergy-
man in question could not have been prevented from afterwards
preaching in the diocese without a suit in the Ecclesiastical Court.
An implied authority, resulting from usage, could not have been of
greater force than an express license or authority, and must have
been subject to a similar power of revocation. ' The consent of the
Incumbent to allow of the strange clergyman preaching in his
church would have been necessary in either case, whether the
Bishop's permission to the stranger to preach were express or im-
plied. Again, an unlicensed clergyman could not have stood in a
better position than a Bishop, who had a general authority to preach
everywhere, yet was obliged to succumb to the prohibition of the
Bishop of another diocese, in case he should have thought fit to
prevent the strange Bishop from preaching in his diocese. It would
certainly appear to be very strange if* a Bishop — considered to have,
by Apostolical authority, a commission to preach everywhere —
might have been prevented from doing so in a particular diocese
by an express prohibition from the Bishop thereof; yet that he
could, by his license, have empowered a third person, of inferior
status, and with more limited authority, to do the very act in de-
fiance of that authority which had been suificient to curtail his
own powers ; and it would have been stranger still if a Bishop
of a diocese could have excluded a brother Bishop, by an express
inhibition, from preaching in his diocese, and that he could not
have dealt in a like manner with a mere Priest or Deacon. On
the whole, therefore, it appears to have been the clear, settled
Common Law of the Church, Hhat no clergyman could have law-
fully preached in any diocese without the sanction of the Bishop
thereof, unless privileged or licensed by some superior Ordinary,
as already mentioned, up to the repeal of 2 Hen, 4, c. 15, by the
25 Hen. 8, c. 14 (Eng.): and this law was not only not con-
trarient to the laws of the realm, but was adopted by the Legis-
lature as the basis of several important enactments.
Such being the state of the law at the time of the repeal of
2 Hen. 4, c. 15, it was continued, except in respect of the Pope's
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XIX
powers and privileges conferred by him, by the Acts of 25 Hen, 8,
c. 19 {Eng,), and 28 Hen. 8, c. 13 (/r). By the English Act of
25 Hen. 8, c. 19, the King was authorised to appoint Commis-
sioners to revise the ecclesiastical constitutions and canons, with
a view of retaining all such as should be approved of, and of
abrogating all such as should be disapproved of ; and by section 7,
\i is enacted, ^'That such canons, constitutions, ordinances, and
synodals provincial being already made, which be not contrarient
or repugnant to the laws, statutes, and customs of this realm,
nor to the damage or hurt of the King's prerogative royal, shall
now still be used and executed as they were upon the making of
this Act, till such time as they be viewed, searched, or otherwise
ordered and determined by the said Commissioners, according to
the tenor, form and effect of this present Act." The authority to
issue such a commission, conferred by that Aet^ having expired,
it was renewed by the 7 Hen. 8, c. 15, and again by the 35 Hen. 8,
c. 16, for the King's life. And by the 3 & 4 Edto. 6, c. 11, similar
powers to appoint Commissioners for the like purpose were con-
ferred on the King, to endure for three years. In pursuance of
the foregoing statutes, Commissioners were appointed, who made
the compilation of Ecclesiastical Laws, called Reformatio legum
Ecelesm.j which never was established as law, though it be valuable
for reference. The Irish Act of 28 Hen. 8, c. 13, made against
the authority of the Bishop of Rome, enacts, by section 10, " That
nothwithstanding the preceding provisions of the Act, every Arch-
bishop, Bishop, &C., shall and may use and excersise, in the name
of the King only, such canons and constitutions, ordinances and
synodals provincial, being already made for the direction and
order of spiritual and ecclesiastical causes, which be not con-
trarient or repugnant to the King's prerogative royal, in such
manner and form as they were used and executed before the
making of this Act, till such time as the King's Highness shall
order and determine, according to his Laws of England, such
order and determination as shall be requisite for the same ; and
the same to be certified either under the King's Great Seal, or
otherwise ordered by Parliament." And section 9 provides that
** nothing in the Act shall prejudice or be hurtful to the ordinances
for the discipline and order of the Church of Ireland, as thereto-
fore used and adopted." Unless, therefore, this jurisdiction and
authority of the Bishop, in respect of persons who shall preach and
officiate in his diocese, has been taken away or modified by some
subsequent canons, statutes, ordinances or usage, it must be taken
to be in full force, as it was at the repeal of the 2 Hen. 4, c. 15.
1861.
Con$i8t,Court,
BP. OF DOWN
V.
inLLEB.
Judgment.
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XX
/fppendix^
1B61. Tb6f« was po disposition on tbt part of the Crown, or those in
ConsjM.CpnH' authority during the remainder of the reign of King Hemy 8,
B?. OF pown or in that of Edward 4, or of Efizabethf to relax the laws imposing
^' restraints on preachers. On the contrary, the right to preach was,
' during spch reigns, placed under very strict regulations, by means
Judgment, of procllLtnations and injunctions from the Crown.
Whether by reason of the troubled state of the ooontry, the
ignoraniM^ of the inferior clergy, or their indisposition to the changes
made by the Jteformation, or for other reasonsn the prerogative of
the Crown in respect of its supremacy was stretched to the ntmost.
At one time the prohibition was, that no person should preach
unless licensed by the Crown or the Archbishop of Canterbury,
or Bishop of the diocese, save the beneficed clergy in their cures.
At another, time the restriction extended so far as to prevent even
the beneficed clergy £rom preaching without a license, by pro^
hibiting all not licensed either by the Crown or the Archbishop
of Cf^nterbury or Yorl;, or the Bishop of the diooese, firom preach-
ing. Some of these injunctions we set forth in 3 Wilk. Coneilia^
pp. 21, 27, $1> and elsewhere. By none of them was any increased
privilege conferred on the clergy, nor any authority of the Bishop
of the diocese curtailed ; save perhaps in the reign of Edw. 6,
when even Bishops were directed not to grant licenses to preach^-
the proplamstion reserving that privilege to the King and Arcb^
bishop pf Canterbury. This brings us on to the reign of Joe. 1-*
when in 1603 a Convocation of the Archbishop, Bishops, &c, of
the province of Canterbury was summoned tani empowered to
confer, treat, debate, and agree of and upon such canons, orders,
ordinances and constitutions as they should think necessary, fit
and convenient, " for the honour and service of God» the good
and quiet of the Church, and the better government thereof, to be
from time to time observed by the Archbishop, Ac, &c., of and
within the province of Canterbury." The canons of 1603 were
framed by that Convocation, and presented to the Crown for ap-
proval, and its assent was prayed thereto, according to the form
of 2$ Hen. 8, and by the royal prerogative and supreme authority
in causes ecclesiastical. Though the canons were framed for the
province of Canterbury, the patent of confirmation, afler reciting
that they would be profitable to the whole Church of the kingdom,
gives the King's assent thereto, according to the form of the said
statute (viz., under the Great Seal); and proceeds further, by the
royal prerogative and supreme authority as aforesaid, to confirm
same, and commands them to be observ'ed, executed, and kept,
both within the provinces of Canterbury and York**-though there
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Appendix, xxi
WEB no mention of any Convocation at York;* and if there were 1861.
none such, their binding efficacy in the proTince of York would depend Cwi«^jCow^.
solely on the mandate of the Crown made in 1603. By the reference bp. of down
to the Act of 25 Hen. 8, c. 19, it might be inferred that the object ^'
was to retain so much of the ancient Canon Law as is mentioned and '
declared in that collection (as was designed by 25 Hen. 8), without JudgmmH,
proceeding to abrogate the other portions thereof^ which were not
contrary to the laws of the realm — all else having ceased to have
any force.
The canons of 1603 were framed and sanctioned by the Crown,
whilst the injunctions oi Elizabeth were in full force, if not in prac-
tical operation ; and there is no reason, a priori^ to suppose, from the
commission or ratification thereof by the Crown, that the framers
thereof, in convocation, intended to depart from the..ancient laws of
the Church, or the spirit of these injunctions, by depriving Bishops
of any portion of their authority, or increasing that of the beneficed
clergy. By the Cftnons from No. 31 to 35 inclusive, regulations
are made for the ordination of the clergy, adopting all the rules on
the subject already mentioned as those of the Church in general,
adapting them to our Reformed Church. The 36th canon then
directs, that no person shall be received into the ministry, nor,
either by institution or collation, admitted to any living, nor suf-
fered to preach, catechise, or to be a lecturer or reader of Divinity,
in either University, or in any cathedral or collegiate church, city or
market-town, parish church, chapel, or in any other plaoe within
this realm, except he be licensed either by the Archbishop or by the
Bishop of the diocese where he is to be placed, or by one of the two
Universities, and except he shall first subscribe the three following
articles, viz. :—
First ; Supremacy of the Crown and Negation of Foreign Power,
Second ; Adherence to the Book of Common Prayer.
Third \ Adoption of Thirty-nine Articles.
This d6th canon adopts fully the ancient law of the Church,
already mentioned, but superadds the necessity of subscription to the
three articles in question, and in terms comprehends all preachers.
It then decrees that, if any Bishop shall ordain, admit or license any
except he first have subscribed as aforesaid, he shall be suspended
from giving orders and licenses to preach, for twelve months ; thus
depriving the Bishop of any discretion to.dispense with the law.
* Bnm^ in his Prefiace, p. 26, states, that " they were also received and passed
about two yean afterwards in the province of York ;" but does not mention any
subsequent or further order of iSbt Crown.
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Appendix.
1861.
C<msist,Court,
* * "■ V ■■'
BF. OF DOWN
V,
MILLER.
Judgment.
The 37 tb canon is, that none licensed as aforesaid to preach, read,
lecture or catechise, coming to reside in any diocese, shall be per-
mitted there to preach, read, lecture, catechise, or minister the
Sacraments, or to execute any other ecclesiastical function, by what
authority soever he be thereunto admitted, unless he first consent
and subscribe to the three articles before mentioned, in presence of
the Bishop of the diocese wherein he is to preach, read, lecture,
catechise, or administer the Sacraments as aforesaid. This is merely
supplemental to the 36th canon, and provides for the case of a per-
son licensed to preach, &c., by the Archbishop or one of the Univer-
sities, coming into a diocese where he shall have obtained an
appointment, in which case he shall not be permitted to act till he
shall have again subscribed to the three articles before the Bishop of
the diocese ; and is rather in affirmance of the authority of that
Bishop, and agreeable in principle with the ancient law, but it is
compulsory on the Bishop.
The 39th, 40th and 41st canons regulate institution to benefices and
residences on the ancient principles of the Church ; and the 42nd,
43rd and 44th enforce residence and preaching in the case of Deans
and Prebendaries, in respect of their cathedrals and benefices — the
diocesan authority being throughout preserved.
The 45th canon orders every beneficed man, allowed to be a
preacher, to preach one sermon every Sunday of the year, in his
own cure, or in some other church or chapel, where he may con-
veniently, near adjoining (where no preacher is), wherein he shall
soberly and sincerely, &c. This does not give him any authority,
directly or indii'ectly, to preach or officiate in another diocese, if not
permitted to do so. " Where he may conveniently " might be con-
strued in an opposite sense ; but merely enforces a performance of
his duty, and localises it.
The 46th canon then orders that every beneficed man, not allowed
to be a preacher, shall procure sermons to be preached in his cure
once every month, at the least, by preachers lawfully licensed, if his '
living, in the judgment of the Ordinary, will be able to bear it ; and
upon every Sunday when there shall not be a sermon preached in
his cure, he, or his Curate, shall read a homily. By this 46th canon
provision was made for a certain limited class of occasional preachers,
the necessity of whom was to be decided on by the Ordinary, and
who must have been, or be, preachers, licensed ; viz., by the Arch-
bishop, one of the Universities, or the Bishop of the diocese, and
who, by the 37th canon, must have first subscribed articles before the
Diocesan.
The 47th canon provides that every beneficed man, lawfully non-
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Appendix,
xxiii
resident, shall cause his cure to be supplied by a Curate, that is a
sufficient and licensed preacher, if the worth of the benefice will
bear it.
The 48th canon is, that no Curate or Minister shall be permitted
to serve* in any place, without examination and admission of the
Bishop of the diocese, or Ordinary of the place, having episcopal
jurisdiction, under his hand and seal, haying respect to the cure and
meetness of the party. The 48th then proceeds further to order
that Curates or Ministers shall not be admitted to other dioceses,
whither they shall remove, without testimony from the Diocesan
or Ordinary of the place whence they came, in writing, of their
honesty, ability and conformity to the Ecclesiastical Laws of the
Church of England : thus taking every precaution against the
admission of unfit clergymen to serve in the Church, exactly as
done by the ancient canons, irrespective of their mere orders. This
48th canon seems, in its terms, to apply to clergymen appointed to
serve cures, rather than to those occasionally acting for the clergy
having permanent cures ; and this appears to have been the view of
Sir J. Nichol in Gates v. Chambers {a).
The canons which are more immediately applicable to what have
been called ^' occasional preachers " are the 50th, 51st and 52nd,
read in conjunction with the 36th and with the 49th canon, which
directs that no person whatsoever, not examined and appointed by
the Bishop of the diocese, or not licensed, as aforesaid, for a suffi-
cient or convenient preacher, shall take upon him to expound in his
own cure, or elsewhere, any Scripture or matter of doctrine, but
shall only read homilies, &c. This seems to adopt so much of the
Constitution of Arundel as begins with, '* But let Parish-priests and
temporary Vicars (not perpetual), who are not sent in form afore-
said, only preach those things contained in the Constitution of John
Peccham, as a supply to the ignorance of Priests," substituting
homilies for Peceham's Heads or Directions (b) ; and probably the
49th canon was only intended to apply to Deacons, who might, at
that period, have been admitted to benefices, as sanctioned by 13
Eliz., c. 12, s. 3.
The 50th canon is, that neither the Minister, churchwardens nor
any other officers of the church; shall suffer any man to preach
within their churches or chapels, but such as, by showing their
license to preach, shall appear to them to be sufficiently authorised
(a) 2 Ad. Rep. 189. (6) 2 Johns., 282, 460.
1861.
Consist Court.
BF. OP IM) WN
r.
MILLEB.
Judgment,
* The Latin canon, as set forth in 2 Ad. Bep., p. 189, uses the words " UUibi
cura animarum inservire,"
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ixiv Appendtx.
1861. thereto aa aforesaid, vix^ tioensed to preaeh hj the Archbishop
*^^' '• of the proTince, Bishop of the diocese, or one of the Uni? ersitics.
BP.OFDOWS For no other Bishop's license conferred an authority to preach in a
*" different diocese, and no license to preaeh is mentioned in the 3€th
MILLEB* .,
or any preceding c«bo% save^ those of the Archbishop, Bishop of
Judgmau. the diocese, or one of the UnirersTties. The 51st prohibits the
admiseioB of strangers to preach in cathedral or coHegtate churches,
except they be allowed by ih^ Archbishop of the province, or by
the Bishop of the same diocese, or by one of the ITnirersities ; and
this clearly applies to occasional preachers in cathedrals*
The 52Bd canon is, '* That the Bishop may understand, if occa>
sion so require, vhat sermons aire made in every chnrcb of his
diocese, and who presume to preach without license ; the church-
wardens and sidesmen shall see that the names of all preachers
which come to their church from any other place be noted in a
book which they shall have ready for that purpose, wherein every
preacher shall safaecribe bis name, the day when he preached, and
the name of the Bishop of whom be had license to preach/* This
has been relied on by Counsel, to show that the authority of the
Bishop of the diocese has been, to some extent, superseded ; and
that the license of any Bishop would be a sufficient authority for a
stranger to preach in the diocese of another Bishop, though forbidden
bj him so to do. But reading the 50th, 51 st and 52nd canons
together would seem to preclude this view. The 50th, by the
words, *' by showing their license to preach shall appear unto them
to be sufficiently authorised thereto, as is aforesaid," appears to
mean licensed and authorised as in the 36th and 49th (»nons men-
tioned. The 5 1st, in respect of occasional preaebers in cathedrals,
expressly specifies the license as required by the 36th canon sup-
porting this view of the 50th canon. The 5!hid canon gives no
authority beyond th«t conferred by the 50th and 36th canons, and
was framed to supply the Bfdiopr with information tm to the sermons
preached in his diocese, and aa to who should presume to preach
without license, in violation oi the 50th canon. The words at the
end of the 52nd canon, viz., ** the name of the Bishop, by whom
he had license to preach," have been particularly relied on to show
that any Bishop might give a lioense to preach, which would be
operative in any other diocese ; but to give such effect to the words
aa to divest the local Diocesan of his authority over preachers in his
diocese, without any such intent being declared, would violate every
rule of construction ; clear words would be required for such a
purpose ; inferences and presumptions, such as suggested in argu-
ment, would not suffice to change the Common Law of the Church,
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Appendix*
XXV
But these words maj be satisfied by holding 1861.
' the authority of whom he had license to preach ; " (^onst^^CourL
V.
MILLER.
Judgments
or to divest rights,
them to mean
otherwise an entry of a license from the Archbishop or either Uni- be. of down.
versity, need not be made. If the name of the Archbishop or
University were not intended to be entered, it would seem then that
those licensed by strange Bishops were designated as those pre-
suming to preach without license of the Bishop of the diocese, and
guilty of contempt. It is said, in Creswiek v. Rokeby (a), that the
churchwardens might themselves enforce the authority conferred on
them by the dOth canon. As the canons were not ratified by statute*
it would scarcely have been in the power of Convocation or Crown^
after 25 Hen, 8, c. 19^ to have deprived the Incumbent of tlje
legal right (if ever he had such) to admit any clergyman, in Priest's
orders, to preach in his church without permission of the Bishop,
and to clothe the churchwardens and sidesmen with power to
control him, as directed by the 50th and 52nd canons ; and such
power would not have ieen increased if the canons, so far as the
province of York, in which the case in 2 Bui*, arose, is concerned^
rested solely on the King's mandate having been made by the Provin-
cial Council of Canterbury alone. But if the Incumbent had no such
legal right up to 1603, and if the Bishop might have prevented any
strange clergymen from preaching in his diocese, there would have
been nothing extraordinary in enabling the churchwardens to act for
the Ordinary, as they do in respect of seating the parishioners ; and
thus the canon would be one for merely enforcing existing rights
by new machinery, instead of depriving an Incumbent of his legal
authority, and transferring it to lay officers of his church. The
words in ihe 52nd canon, *' that the Bishop may know who pre-
sume to preach 'without license,"* &c., support this view, and
show that it was in support of the Bishop's authority the church-
wardens were to act, and not for the parishioners, who had no legal
right to interfere in the matter. If the 48th canon did not refer to
*' occasional preachers," the 50th and 52nd would appear to have
been passed to exclude all not having a license as required by the
36th canon, or by the Common Law and ancient canons of the
Church. The 71st canon prohibits the preaching or administra^
tion of the Holy Communion in *' private houses," described to be
*' those wherein are no chapel dedicated and allowed by the Ecclesi-^
astical Law of the realm," viz., unconsecrated buildings.
No extension of these canons was made to Ireland by the Crown 9
but in 1634 a General Convocation of all the Bishops, &c., in Ire-
land was assembled, and this National Synod was authmsed, by
(a) 2 Bills. 49.
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XXVI
Jppendix.
1861. Car, 2, to treat and confer upon sach articles, canons, dsc., as they
Conrnt^Cowri, ^^^ think necessaiy and fit for the honor and service of God, root-
BP.OF DOWN ing out of heresies, procuring the good and quiet of the Church, aijid
^* preservatioii of the good government in causes ecclesiastical, as also
to set down ordinances and decrees to have such force and effect aa
Judgmmt, ^her canons and amMtUuHons of the Church have ; and the same
(our royal assent being first had) to set forth and publish ; ^ rather
showing that the ^ other canons and constitutions " were to remain
as before, unless altered by some new canon. By this Synod, the
canons of 1634 were prepared and presented, and the assent of the.
^ Crown thereto prayed, according to the form of the statute made in
tl^at behalf (vis., 28 Hc$u 8, c. 13), and by his prerogatiye royal
- and supreme authority in canons ecclesiastical \ and they thereupon
were ratified and established. The 1st canon proclaims the agree-
ment of the two Churches, neither being dependent on the other,
in the confession of the same Faith and the doctrine of the Sacra-
ments, and receives and approves of the Thirty-nine Articles agreed
upon in the (Convocation in London, 1562, and which had been
previously thereto generally received in the Church of Ireland, as
stated in the Slst canon. These canons are not so numerous as the
English candns, being only 100 in number, whilst the English are
141 ; nor do they purport to have any other object than tiiat ex-
pressed as aforesaid. The Irish canons of 1634, on the subjects
under discussion, are similar to the English canons of 1603, save
that in the Irish canons the only person expressly referred to as
competent to license or authorise preachers is the Bishop of the
diocese. The 9th (/r.), like the 45th {Eng,\ requires every bene-
ficed man allowed to be a preacher to preach every Sunday in his
own cure, omitting the words of the 45th, ^' or in some other church
^>r chapel, where he m%y, conveniently near, adjoining where no
preacher is.** The substance of the 36th and 37th {Eng.) is con-
tained in the 31st and 32nd (/r.), sare in respect of the license to
preach, not required in express terms by the 31st and 32nd (/r.),
and the 38th follows the 48th {Eng.\ beginning **no Curate.**
The 39th (/r.), prohibiting the admission of strangers to preach,
uses the words '^ unless sufficiently authorised as aforesaid, " instead
of '^ by showing their license as aforesaid," as in the 52nd {Eng.) ;
and contains the injunction as to preachers of erroneous doctrines,
contained in the 51st {Eng.). The words '* authorised as aforesaid"
seem io refer to the authority required by the 38th canon, vis^
Bishops of the diocese, which is also required by the 27th (/r.), for
cathedral preachers, whereas, by the 5 1st {Eng.\ cathedral preaches
may be allowed by the Archbishop, or Bishop, or one of the Univer-
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Appendix. xxrii
titles ; it does not appear that the Irish University ever had power 1 861.
to lioense preachers. The 2l8t (/r.), prohibiting preaching in pri- ^^'""^•^^f^^
vate houses, follows the 71st (Eng.). There is no Irish canon as to bp. ofdowk
a preacher's book, but there is no substantial difference between the ^'
two sets of canons, save that the English are more numerous, and
enter more into details. These canons s}£ 1603 and 1634, in the JudgwttKt.
particulars mentioned, merely embody the Common Law and ancient
canons of the Church, adapted to the circumstances of that Church
as altered by the Reformation and subsequent statutes. They do
not purport to do more than provide for certain limited branches of
Church government and discipline, leaving several matters, many of
them of daily practice, to be regulated by the more ancient canons
and Common Law of the Church — by the authority whereof the oath
of canonical obedience, taken at institution, is enforced at this day.
The regulations with respect to the preaching of strangers in any
diocese, imposed by those canons, are few ; and even if the 48th
iEn0,) and 38th {Ir,) do not apply to occasional preachers, in the
sense relied on by the impugnants here, and the Bishop be left, in
respect of such preachers, unfettered by the 36th English canon, he
would still be in possession of his jurisdiction and authority, as it
existed, independently of and unaffected by these canons. It may
be doubtful whether the 48th (Eng,) and the 38th {Ir.) canons
respectively apply, or were intended to apply, to occasional
preachers ; but there b nothing in either of them, or in the other
canons, to deprive the Bishop of any of his authority ; and the
arguments founded on them cannot be extended further than that the
case has been left unprovided for by these canons ; so that the Bishop
may exercise his authority according to his own discretion, though
he may not have acquired any additional powers from such canons.
An argument was strongly urged, by the advocates of impugnanty
to show the canons only required that a preacher should be licensed
by a Bishop of any diocese, and that the license of the particular
Diocesan was unnecessary, founded on a supposed opinion of Waiion*
The English Act of 1 3 Eliz^ c. 1 2, " An Act for the Ministers of the
Church to be of Sound Religion," by section 6, enacts, that none
should be admitted to a benefice above the value of £30 in the
King's books, unless he should be a Bachelor of Divinity, or a
preacher lawfully allowed by some Bishop within this realm, or by
one of the Universities of Cambridge or Oxford.
WiiUon^ in the 1st, 2nd and 3rd editions, applies the decision, by
7th resolution, in Browne v. Spence{a), that the license of any
Bishop was sufficient, solely to the 6th section of 13 Eliz, ; adding,
*'that a preacher, by the canons, must have license from the..
Ca) I Kelb. Rep. 502.
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XXVlll
Appendix,
1861. Bishop of the diocese" — In the 6th section of 13 Eliz. merelj
,Cofmst.C<nai. gg^iing ^\^^ qualification of the persons to be admitted to liv-
BP. OF DOWN ings of a certain value, and who would thus gain, by institution,
^* permission from the Bishop of the diocese to preach, &c. The
observation of Watson^ as to the limitation of Browne ▼. I^pence
Judgment, to the Act of Eliz^ and of a preacher, by canon, requiring a
( license, &c., has been omitted in the 4th edition, and the words
run, *' but a license of the Bishop of any diocese is sufficient," as
if generally applicable. This has been relied on in argument to
prove that Watson changed his opinion, and intended to lay down
that, by the canons of 1603, or the general law of the Church, a
license of any Bishop was sufficient to authorise a clergyman to
preach in any diocese. But this edition was published after Wat-
ton^t death, and so was the Srd edition, which contains the obser-
Tations as originally published by Watson^ and altered in the 4th
edition; so that even the opinion of Watson cannot be relied on to
controvert the general doctrine adverted to, though the passage in
the 4th edition should bear the interpretation sought to be put on
it, which it would not seem in fairness to do.
So matters remained (passing over the troubled times), until the
13 & 14 Car. 2, c. 4 (Bng.), aj>. 1662, was passed, when preachers
had not increased in favour with the Crown, or the leaders of the
Grovemment party of that day. Throughout that Act of Uniformity
there are clauses to exclude all but good Episcopalians and Royalists
from the Church and from the pulpit. Section 19 enacts, that no
person shall be or shall be received as a lecturer, or permitted,
suffered or allowed to preach as a lecturer, or to preach or read any
sermon or lecture in any church or chapel, or other place of public
worship within this realm of England, unless he be first approved
and thereunto licensed by the Archbishop of the province, or Bishop
of the diocese, or, in case the See be void, by the Guardians of the
Spiritualities, under his seal, and shall, in the presence of the same
'Archbishop, Bishop or Guardian, read the Thirty-nine Articles,
with declarations of his unfeigned consent thereto. The section
then proceeds to provide more specially for lecturers. It is enacted,
by the 22iid section, that Common Prayer and service for the
day shall be read befbre any sermon or lecture be preached.
By the Act of Car. 2, it seems that the ancient privilege of the
Universities, recognised and mentioned in the 36th and 5l8t canons,
iras superseded, unless it has been preserved by 13 Eliz.^ c 12.
The Irish Act of Uniformity, of 17 & 18 Car. 2, c. 6, a.d. 1695,
follows that of England almost verbatim, in the clause material
to be considered in this case : sections 13 and 16, as to preachers.
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Appendix.
XXIX
and the necessity of having the service before the sermon, follow-
ing sections 19 and 22 of the English Act on the same subject ; and
section 9 being similar to section 24 of the English Act. The 22nd
section of the English Act, and 16th of the Irish, most plainly refer
to occasional as well as other lectures or sermons, and have been
always so construed. The 13th section of the Irish, and section 19
of the English Act, are, in their terms, in like manner, applicable
to all preachers. Watson observes thus, on the 19th section of the
English Act, viz., *' and note, every person when he is ordained
Priest doth thereby receive authority to preach the Word of God ; "
and when he is instituted " the Bishop doth commit to him the cure
of %o\xW* —Sheppardy in his Sure Guide for the Juetiees of the
Peace, saith that the clause in the statute 14 Car. 2, concerning
lecturers, seems to extend to all ministers that preach anywhere
without a license," the words of which are {Pro-ut), "And
although," Watson proceeds, " as I conceive, the clause was only
designed for such who are to preach in the quality of lecturers,
yet it may be extended to all Ministers preaching in any church or
chapel, or any place of public worship, of which the preacher hath
not the cure, though he be not a settled and constant lecturer ; and
even before the statute it was lawful for churchwardens to restrain
any stranger, not licensed, from preaching in their church or chapel ;
which seems to be allowed in Creswell v. Rohehy " (a). There
would, no doubt, be great dMSculty and inconvenience in extending
the canons and statute so far as to make it imperative on every cler-
gyman, preaching an occasional sermon in a strange diocese, to have
a license under the seal of the Bishop of the diocese. In Gates v.
Chambers (b)y Sir J. Nichol expresses great doubt on the subject
of the applicability of the canons to such a case, but he does not
refqr to the statute. In that, case, a clergyman of a neighbouring
diocese had been invited to preach and officiate for an Incumbent
who had dismissed his Curate, and who was obliged to be absent, to
attend his sick wife ; but, on his going to the church for the pur-
pose, he was opposed in his attempt to officiate for his friend by the
Curate, who alleged that he had been illegally dismissed. Mr.
Chambers, however, persevered, and preached and officiated for his
friend. The Bishop had made no objection to Mr. Chambers so
acting ; but the office of the Bishop was promoted by the Bishop's
secretary, at the instance of the Curate, and two charges were
made: — ^first, for violating the 48th canon, by officiating without
license of the Bishop, or other competent authority ; secondly, for
1861.
Consist, Court.
BP. OF DOWN
V.
MILLEB.
Judgment.
(a) 10 Jac, B. R., 2 Buls. 49.
(6) 2 Ad. Rep. 189.
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XXX
Appendix.
1861. having thereby obstructed a dulj licensed Curate in the performance
Constg^ Court ^£ j^j^ clerical duties, in violation of the 48th canon, and against the
BP.OF DOWN laws and constitutions ecclesiastical of the realm. So far as can be
^* collected from Sir J. Nicholas observations, his opinion was against
, ' applying the 48th canon to such occasional assistance. But the
Judgment* pleading was admitted on other grounds, and the suit was abandoned,
and dismissed with costs, so nothing was decided. A different
question arises in the present case; for even supposing that the
48th {Eng,) and 38th (Jr.) canons do not apply to clergymen who
only assist an Incumbent by preaching an occasional sermon, im-
pugnant must further establish that the Bishop of the diocese has
no power to prevent any such clergyman from so preaching or
officiating. He had that power up to 1603 in England, and up
to 1634 in Ireland, when those canons were respectively confirmed
by the Crown ; and if the canons do not refer to such a case, the
power o^mains as before, unless subsequently taken away by statute
or usage. The Acts of Uniformity, of Car, 2, may not render a
license from the Bishop to enable strangers to preach occasional
sermons in his diocese absolutely necessary, though those Acts might
be 60 construed without straining their language. But in no view
can they be read as depriving the Bishop of any portion of his juris-
diction or authority in respect of such preachers. The most that
can be said of them is that^ though they require a license in terms
in such a case, it would be very incon^nient so to construe them.
The practice which has long prevailed, and still prevails, in most
dioceses in England and Ireland, of clergymen obtaining such occa-
sional assistance, without applying to the Bishop for his license or
permission in each particular case, was not interfered with further
than already mentioned, if at all, by the canons of 1603 and 1634,
or the Acts of Car. 2. But I cannot find a trace of any practice
or usage, or even a dictum in any reported case, going to the extent
that a Bishop could not, at his mere will and pleasure, without
assigning any reason, have prevented any particular atranger from
preaching or officiating in his diocese, until licensed ; though, in Jfor-
iin V. BindSf something is mentioned in respect of officiating (which
will be noticed hereafter). It was strongly urged, as a reason against
such a right being vested in the Bishop, that it might be abused,
and the exercise of it made an instrument of tyranny and oppres-
sion. But if such a mal-administration of a diocese should ever
occur, there is a Visitor in the Metropolitan and Superior Ordinaiy,
who might be able to provide a remedy for such an abuse of
power, and to whom the Sufiragan takes an oath at his consecra-
tion, in the following words : — *^ I do profess and pro-
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Appefidix.
XXXI
V,
MILLBR.
Judgment*
mise all due reyerence and obedience to the Archbishop and to 1861.
the Metropolitical Church of ^ and their Buccessors— So <^^<^<^}'
help me God. Through Jesus Christ.'' Besides which there are bp. of down
powers in the Crown which might be brought into operation. On
the other hand, if every Minister should be at liberty, as he pleased,
to admit any other clergyman to preach and officiate in his parish,
in defiance of his Bishop, leaving the Bishop the mere power of
punishing the stranger for unorthodox opinions, when proved tO"
have been delivered, it is possible that very great abuses might
arise, to prevent which there would be no adequate remedy ; parti-
cularly as the term *' occasional " applies to the Incumbent who
obtains the assistance, and not to the clergyman who renders it, and
who, by means of such a practice, might be enabled to preach and
officiate throughout a diocese (though unfit to. enjoy such a privi-
lege), in defiance of the Bishop thereof; who, though Bishop and
Superintendent of the diocese, and answerable for the cure of souls
therein, would thus be deprived of all power, save that vested in
every member of the community, of prosecuting an unorthodox
preacher, in the Ecclesiastical Court For if one Incumbent has a
right to admit a particular clergyman, not beneficed or licensed in
the diocese, to preach and officiate in his church occasionally, when-
soever he pleases, other Incumbents may do so in succession ; and
thus a clergyman, objectionable in many respects, though not so
unorthodox or so misconduoted as to justify a sentence of degrada-
tion or suspension in a suit to be instituted for the purpose, might
be introduced into a diocese as nn almost permanent officiating
Minister, in defiance of the Bishop, the chief pastor and superin-
tendent thereof, and in violation of the first principles of Episcopal
government and our parochial system. Suppose, Tor instance, that
a Bishop knows, or has good reason to believe, that a clergyman
about to preach in his diocese was the author of one of the Oxford
Essays, which have been denounced^by the English Bishops and our
Archbishops, or that he had adopted the opinions therein promul-
gated, and suppose the Incumbent about to allow him to preach
difiered from the Bishop, either in respect of the authorship or the
heresy, the Bishop, according to the argument here, would have to
tolerate the preacher in his diocese until he had instituted a suit,
and proved to the satisfaction of the Court that the clergyman in
question was the author of the work, or that the opinions were here-
tical ; whereas, if he were presented to a benefice or cure, he might
be refused institution- or a license, by the Bishop, till his orthodoxy
had been decided upon. It would require some clear authority for
such a proposition, which would deprive the Bishop of his power to
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xxxn
Appendix.
1861. prevent the admission of unfit occasional preachers, whilst he is
V -^ ^^' empowered to refuse admission of unfit persons to benefices and cures.
BF. OF DOWN Again, supposing the Bishop has good reason to believe that a
^' clergyman is an immoral man, and addicted to habits unfitting him,
in the Bishop's opinion, to be a preacher of the Gospel, and that, for
Judgment, , want of satisfactory proof, or the fear of the expenses of a heavy
suit, neither the Bishop of a diocese where he has a benefice, or, if
unbeneficed, where resident, nor any other person, shall have pro-
secuted him, so as to obtain a sentence of degradation or suspension,
the Bishop cannot, according to the argument used here, prohibit
such a dlergyman from preaching or officiating in his diocese, in case
an Incumbent please to admit him so to do. An Incumbent might,
perhaps, difier from the Bishop as to the sufficiency of his informa-
tion and evidence ; or, perhaps, not take the same view of the trans-
action ; particularly, if anxious to be absent for a short time from
his benefice, and unable to procure the assistance of any other
clergyman. All these cases might occur, and will show that as
many evils might arise if the Bishop had not the power claimed,
and perhaps more than if he had such. In point of fact, a clergy-
man, named Taylor, was inhibited by Archbishop Magee, on suspi-
cion of his entertaining infidel opinions, and which suspicions were
subsequently verified by public lectures delivered by him in London.
If the argument here be valid, Mr. Taylor might have continued to
preach in Dublin, in defiance of the Archbishop, who would thus
have been deprived of all episcopal power in respect of occasional
preaching. However, rights cannot be decided on such specu-
lations.
Considerable stress was laid in argument on the Thirty-nine
Articles, and the Ordination Service, as now in use ; and it has
been urged that the practice of granting general licenses to
preach has fallen into disuse, by reason of that service, and
that such disuse of general licenses had conferred full authority
on every clergyman in Priest's orders to preach whenever he may
be permitted by any other clergyman so to do. But no material
change has been made in the Ordination Service, on this subject,
since the 6 & 6 Edw. 6 ; and there is nothing in any of the Thirty-
nine Articles, nor in the Ordination Service, established since the
Reformation, to specify what authority unless it be that of the Ordi-
nary or Diocesan, shall enable a clergyman to preach in any particular
place ; and there is no general authoritj conferred thereby, so as
to dispense with all diocesan authority or limits of jntiadiction.
The Thirty-nine Articles and Ordination Service were in fa)! font
when the injunctions of Elizabeth^ and the canons of 1603 and 1634,
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Appendix.
xxxni
1861.
Caniist. Court,
were issued and made ; and the two Acts of Uniformitj, of Car. 2,
referred to, enforce the use of such services, which distinctly recog-
nised the parochial and diocesan system. The authority conferred bp. of down
by the 23rd Article declares it is not lawful for any man to take ^'
upon him the office of public preaching, or ministering the Sacra-
ment, before he be lawfully called and sent to execute same by men Judgment.
who have public authority given unto them in the congregation
to call and send Ministers into the Lord's vineyard. And the 36th
declares, that the book of consecration and ordaining of Priests and
Deacons, set forth in the time of Edw. 6, doth contain all things
necessary to such consecration and ordaining. By the Ordination
Service of 1649 (3 & 4 Edw. 6), the preface whereof requires a
Deacon to be not less than twenty-one, and a Priest not less than
twenty-four years of age, declares the duties of a Deacon to be to *
assist the Priest and read Holy Scriptures and homilies in the
church, as in the present service, and then proceeds thus, viz. : —
^* Take thou authority to execute the office of a Deacon^ in the
Church of God, committed unto thee ; ** and " Take, &c., to read the
Gospel in ^e Church of God, and to preach the same, if thou be
thereto ordinarily commanded " (viz., commanded by the Ordinary).
In the .Ordination Service of the Priest, the promises to teach the
people are the "people committed to his charge." And those to
banish error, and to monish the sick and whole, are exacted as to
"those within his cure."
"And the promise to set forth quietness, peace and love among
all Christian people is followed by, * especially among them that are
or shall be* committed to your charge.'" The authority given
was — ** To preach the Word of God and to administer the Holy
Sacrament in this congregation " (viz., in his cure, and to those com-
mitted to his charge). The phraseology is slightly altered in the service
of 1562, enforced by the Act of the 6 & 6 Edw.^ c. 1 ; the authority
being given " To the Priest to preach the Word of (jrod, and
minister the Holy Sacraments in this congregation where thou shalt
be so appointed'* But, in other respects, the service follows that
of 1549. The service of 1559, enforced by 1 Eliz., c. 2 (Enff.),
2 Eliz., c. 2 (/r.). was that oi Edw. 6, 1552. The present service
follows that of 1552, with slight verbal alterations ; the authority
to the Deacon being, to read the Gospel in the " Church of God,
and to preach the same if thou be thereto licensed by the Bishop
himself" — not the Ordinary, as before. The authority to the Priest
is, " To preach the Word of God and to minister the Holy Sacra-
ment in the congregation where thou shalt be lawfully appointed
thereunto." In other respects they do not differ. So the disoon-
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XX](I7
Appendix,
V.
MILLEH.
Judgment,
1661. tinuaace of the practice to grant the more general license to preach,
o .upyrt, yfii]^Q^^ restriction as to locality, cannot, in good reason, be attri-
3P. OF DOWN buted to any general authority conferred by the Ordination Service,
which has qot varied. It would be more satisfactorily accounted
for by the improved education of the clergy having rendered such
licenses unnecessary. No authority could grant such general
licenses, but the Crown, the Archbishop and the Universities. The
Bishop could grant a license to preach, limited to his own diocese ;
but no Bishop could have granted a license enabling a clergyman
to preach in another diocese, without permission from the Diocesan
thereof. When the Crown, Archbishop *and Universities ceased to
give general licenses to preach, there remained no authority to con-
flict with that of the Diocesan ; but it is difficult to understand the
argument that, by reason thereof, the authority of that Diocesan was
entirely superseded, and that every clergyman, ordained by himself
or by any other Bishop, thereupon acquired the right of preaching
in any diocese to which he might be invited by any Incumbent^ in
defiance of the Bishop thereof, though actually inhibited by him.
The practice to be collected from the forms of collation, institution
and license, formerly and still in use, is in accordance with the
ancient law of the Church and the Ordination Serrice ; and it is a
mistake to say that the practice of licensing preachers, who are not
beneficed (save the practice of granting the general licenses, irre-
spective of locality), have ever fallen into disuse, which it should
have done if the Ordination Service conferred general authority to
preach. The forms of institution and collation now, and for
upwards of two centuries, in use in Ireland, run thu8,^Uler giving
the benefice, vis.: — ''And we do commit to you the care and
government of the souls of the parishioners of the said,'' &o. There
is no special mention of preaching, or ministering Sacraments, or
other duties, all being, aa of old, included in the cure of souls. But
in the license to serve perpetual cures, the words are : — *' To serve
the cure of souls within, dsc, to preach the Word of Grod, and to
administer the Sacrament, Ac, there/' And so in the licenses to
Assistant-curates, the authority is *' to perform the office of Assistant-
curate, or to assist in serving the cure of souls of the parish afore-
said, to preach the Word of Grod, and administer the Sacrament,
&C., within the same** When the Assistant-curate ' was only to
read prayers, the license ran thus, viz : — '* To read prayers as his
assistant." Mr, Miller's institution is in thft above form, and Mr.
Potter had a license to preach as Assistant-curate in the Chapel-of-
ease of Cushendun, diocese of Down and Connor, and now has a
lictsose, in the above form, of Perpetual Curate, and a license to
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XXXV
preach in Newtownbarrj, in the diocese of LeigbUn. Hia right to 1861.
preach there depended on that license, and toot of that for Cushen- ^!***^J ^'
.dun, in the diocese of Down and Connor. His own 6th Article, bp. op down
already adverted to, would prevent his now relying on the latter ^*
license, even in Down and Connor. The forms in use in England, .
of licenses of Curates, contain, like those in Ireland, authority to Judgment,
preach in the particular cure. But the form of institution, as given
in 2 Bum, p. 167, differs in phraseology from the form in use in Ire-
land, though substantially they are similar. ' The English form runs
thus : — " InstUuo ie ad habere curam ammarurt^ ei aceipe euram
iuam et meam" The latter words are in accordance with the posi-
tion that the Bishop has the cure of souls in every parish, and con-
fers it on the Incumbent by institution. The licenses granted in
England and Ireland to the different clergymen who have private
chapels, as well as to those who have chapels erected under the
modem Acts of Parliament, in like manner, confer, in express terms,
the authority to preach in such chapels. Hius, all the forms nega-
tive the sufficiency of orders to confer a general authority to preach.
It was argued, as already noticed, though not so firmly, that the mere
institution or license by one Bishop gave the clergyman so instituted
or licensed authority to preach in eveiy other diocese, even supposing
he had not acquired such authority by bis ordhiatfon ; and though
a Bishop, if left at perfect liberty, would never have admitted the
clergyman to the benefice in question, but whom he coold not reject
without some legally valid objection. If the conferring a benefice
or a license to serve a cure and preach in one diocese be a sufficient
authority for a clergyman so instituted or licensed to preftch in every
other diocese, without the license or permission of the local Ordi-
naiy, some trace of it should be found in the forms referred to, but
they never vary. Whenever the change of cure renders a license
necessary, that license contains authorHy to preach the Word of
Grod in the new cure, though it be in thf> same diocese as the former
cure ; which would negative the asdeition that the orders of priest-
hood alone conferred the right to preach, or that the license to
preach in a cure amounted to a general license to preach in all other
cures. This argument, based on the effect of institution or license
by some other Bishop, has been also formed out of the disconti-
nuance of the general license to preach, as if the gap left thereby
must be filled by some authority other than that of the Bishop of
the diocese, which was thereby strengthened and confirmed.
It would be an intelligible argument, and consistent with the
general polity of the Church government, to say, that institution
or license, by which authority is given to preach in any benefice
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xx^vi
Appendix.
1861. or care, or chapel, by an Archbiahop, should stand in place of a
^_' ' general license by him s but it could not be pushed further, consist-
BF. OF DOWN ently with sound reasoning. There is not even an allegation that
^' any usage has existed for Incumbents to admit to their pulpits a
_ clergyman prohibited by their Bishop from acting in his diocese,
Judgment, or in any particular parisli. The usage, in point of fact, has
been the other way.
In the cases of Mr. Taylor and a Mr. Nolan, and one or two
others, the inhibition of the Archbishop of Dublin had the effect of
preventing the prohibited clergyman from acting in the diocese;
and I believe that in England there have been several instances of
inhibitions having had the like result. However, a usage of that
description, if it had existed, would have but little effect, it amount-
ing to no more than an assertion of right on the one side, and a
denial on the other, without any adjudication on the subject.
This right of meUx>politan and diocesan control over the pulpit
has been adopted in the Acts relating to clergy, ordained for the
Colonies and foreign countries, as well as for Scotland, and preserved
by the Acts of 59 G. 3, c. 60, s. 3 ; 3 & 4 Vic, c. 33, ss. 1, 2, 3 ;
and though such authority is thereby controlled in respect of the
frequency of its exercise, no rights are transferred to the Incumbents
of parishes, other than what they ever possessed in respect of the
admission of strange preachers, viz., that their consent should be
given thereto.
The general rule, that no clergjrman can preach or officiate in
any diocese,' without the express or implied authoiity of the Bishop
thereof, has been laid down by the Judges of the Temporal as
well as 6f the Ecclesiastical Courts, in the cases referred to in
the argument : Finch v. Harris (a) ; Smith v. Lovegrove (b) ;
Trebec v. Keith (c) ; Carr v. Marsh {d) ; Hodson v. Dillon (e) ;
Freeland v. Neal(f) ; Office y. Nixon; Milward (in note), p. 390;
Office V. Gladstone ; Office v. Morton ; Office v. Gregg. In two
of which, viz., Finch v. Harris^ and Smith v. Lovegrove, it is ex-
pressly laid down, that letters of ordination are insufficient to
confer authority, though they put the clergyman in a capacity to
be so authorised fo preach and officiate.
The cause of Office v. Nixon was finally heard before Dr. Miller,
in April 1838, sitting as Surrogate of the Vicar-Greneral ; and in
the course of that judgment. Dr. Miller quotes and adopts an opinion
of Dr. Fhillimore, as stated in the Christian Examiner^ for May
1838, p. 325, viz. : — ^*I apprehend that a Bishop has no authority
(a) 12 Mod. 641.
(c) 3 Atk. 498.
(e) 2 Curt. 868.
(6) 2 Lee. by PhiU. 161.
(<0 2 Phill. 206.
CfJ 1 Bob. 643.
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XXXVIl
to prevent any Incumbent within his diocese from admitting into 1861.
the pulpit of his church any regularly ordained Minister of the ^!!!f!f ' -^^ '
Established Church, not resident within his diocese, from preaching bp. or down
an occasional sermon in any church within his diocese, provided he ^'
has the sanction of the Incumbent of that church for so doing ; " '
which Dr. Miller adopts, if, as he adds, '^ by occasional sermon, be Judgment,
understood only a sermon preached in the course of that reciprocal
accommodation which the parochial clergy have long been in the
habit of giving and receiving, and the Bishop of allowing" He
then proceeds to discuss the soundness of Dr. Philiimore's opinion ;
but the subject thereof was not involved in the question raised
for Dr. Miller's decision. It seems from the observation, p. 292,
that the reviewer considered that Dr. Miller had unequivocally con-
ceded the long debated " question of pulpit jurisdiction, and had
given his opinion that an Incumbent had a right to avail himself of
the occasional assistance of any ordained Minister," in the sense
entertained by the reviewer, viz., in opposition to the Bishop ; but
having regard to Dr. Miller's qualification, at p. 325, by the words,
and ''the Bishop of allowing," already quoted, his dicta do not
bear that interpretation, though they certainly are rather obscure,
particularly when read in conjunction with the opinion of Dr.Philli-
more, which he, to a certain extent, adopts ; and in which opinion,
as set out in the Christian Examiner, of September I860, p. 2^3,
Dr. Phillimore denies the Bishop's power to prevent any ordained
Minister, whether belonging to his diocese or not, from preaching
in his diocese, if admitted by an Incumbent so to do ; and says, " The
Bishop, a priori, cannot object to the preacher ; but if the doctrine
preached be repugnant to the Word of God, the Bishop may proceed
against the preacher in the Ecclesiastical Court."
The cases like Office v. Neal and Hodson v. Dillon are all
founded on the general rule of the Church, that the Bishop might,
at his will and pleasure, revoke the license and authority given by
him to any clergyman, to preach or officiate in his diocese, who had
no benefice or cure therein; though having such, a judicial proceed-
ing is necessary before such persons could be deprived of their
rights. Though none of the cases cited were in respect of occasional
preaching or officiating in parish churches, the rules referred to by
the Judges who decided thereon are general in their ' application,
and were pronounced in order to lay down the principles on which
the particular cases should be decided. In none of them is it even
suggested that occasional violation of a Bishop's orders would be no
offence. The sentences in the cases of Smith v. Lovegrove {a),
(a) 2 Lee; afiBnned on appeaL
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XXXVIU
Appendix.
1861.
Consitt, Court.
Freeland y. Need {a)y Office ▼. Nixon^ Office v. Gregg^ Office
▼. Gladstone^ although the four latter were pronounced in
BP. OF DOWN causes instituted against Clerks for preaching and officiating in
V.
MILLER.
Judgment,
unconsecrated buildings, proceed on the sole ground that the Clerks
were not licensed by the Bishop of the diocese ; and by each of such
sentences thej were respectively forbidden to preach or officiate in
such buildings, or elsewhere in the diocese ; which prohilnted them
from so preaching or officiating in a parish church, though invited
by the Incumbent, unless licensed bj the Bishop so to do, tfios
declaring the law to be as laid down bj the Judges in their prelimi-
nary dicta ; for if such licenses were not required to authorise
occasional preaching alnd officiating, the prohibition against so doing
*' elsewhere in said diocese " would have been erroneous ; as appears
by the judgment in 2 Lee^ p. 17 1» where that very point, in respect
of officiating (the prohibition against preaching elsewhere in the
diocese being admittedly correct), was the subject of appeaL The
only case that contains a suggestion of doubt, as to the necessity of
a license even to read prayers, is that o^ Martin v. Hinds^ in Covy>^
pp. 444-5 ; where Lord Mansfield is reported to have said, '* But a
Priest employed by anybody to read prayers wants no authority ;
the very ordination gives him authority; he wants no license; he
signs no articles ; the Bishop cannot inhibit him, and the office is
temporaL'* But this dictum (if uttered as reported) was not at all
relevant to the point under disuussion here, but referred to a class
of persons called readers, who need not have been in Priests' or
Deacons' orders, and seems rather inconsistent (so far as it states
that the ordination gives him the authority) with Lord Mansfield's
argument. There is much doubt, besides, as to the authenticity of
the report in other respects, inasmuch as the dictum does not appear
in the fuller report of the case in 1 Doug.^ p. 146. It has no applica-
tion, however, to preaching without the authority of the Bishop ;
and, if the dictum be authentic, it should be applied to the class
then under discussion, as already noticed.
It has been further contended by the Advocates for impngnants,
that, even supposing the Bishop could have inhibited, as done here,
he was bound to cite the impugnants, or give them an opportunity
of showing cause against the issuing of the inhilntion ; and, for this,
Bonnaker V. Evans {h)j with the authorities therein cited, were
relied on. The principle of those oases, as stated by Parke, B., is,
'* That a man cannot incur the loss of liberty or property, for an
^fience, by a judicial proceeding, until he has had a fair opportunity
(a) 1 Rob. 651.
(6) 16 Q. B. B. 162.
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xxxix
V.
MILL£E«
of answering the charge against him, unless indeed the Legislature 1861.
has expressly or impliedlj given an authority to act without ^ > *
that necessary preliminary/' But the inhibition is not, as already bp.ofdoww
observed, in the nature of a judicial proceeding ; it is, in substance,
merely the withdrawal of the Bishop's implied permission for Mr.
Potter to preach in his diocese, till he should have obtained special Judgment,
and express permission to do so; and this suit is the judicial pro-
ceeding to punish him for having done so. If the Bishop has the
joint control with the Incumbent over the pulpit, as claimed, he had
a clear right to exercise it according to his own discretion. Mr.
Potter had no right in the matter ; he, by his 5th Article, disclaims
the diocese and repudiates the Bishop as his Ordinary. He could
not have obtained a mandamus against the Bishop to compel him to
admit him, Mr. Potter, to preach, or to examine, of license him.
His cure was in the diocese of Leighlin, where he is presumed to be
resident ; and he could not have been cited or summoned to the
Court of Down and Connor, unless he had committed an offence
therein, which he had not done till he had preached.
The cases of Hodsan v. Dillam^ and Office v. Gladstoney are
strong instances of this difference between cases wherein ecclesias-
tical rights, or others, are in question, and cases where there are no
such recognised rights ; for both Mr. Dillon and Mr. Gladstone had
been officiating in proprietary chapels, by license duly obtained from
the Bishop, but they were not chapels consecrated, dedicated, or
allowed by the Ecclesiastical Law, or by statutes.. And it was held
that the Bishop was entitled to revoke, as he had done, such licenses,
at his mere will and pleasure, without any cause assigned, or allow-
ing those gentlemen any opportunity of showing cause against his
so doing, there being no rocognised rights, irrespective of such
licenses, in either of such parties ; as fully appears by Dr. Lushing-
ton's judgment in Hodion v. DilloHy adopted in Office y, Gladstone.
They had what would appear, in popular language, to haVe been
vested rights, such as would have entitled them to have been
allowed an opportunity of showing cause against the order to revoke
their licenses, as well as against the issuing of the inhibition, but
legal rights they hac^ none. So Mr. Potter, or any other clergy- '
man, without benefice or cure in the diocese, has no legal right to
preach or officiate therein. Every Incumbent migl^ exclude him
from his church or parish as an officiating Minister, at his will or
pleasure, even though he should be licensed or authorised by the
Bishop to preach and officiate in every parish in his diocese.
The Incumbent is the only person who could even pretend to
a right to bring in a clergyman to preach and officiate in his
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Appendix.
V.
MILIiEB.
186 1. charcb, by way of obtaining occasional assistance. Bat the right of
ConsUt^Cawrt. ^^ Incumbent cannot, on any sound principle, be extended beyond
BF. OF DOWN that of his right in having permanent assistance. They both rest
on the same grounds, that no clergyman can preach or officiate in a
diocese without the authority, express or implied, of the Bishop
Judgment, thereof. The Incumbent or Perpetual Curate obtains, by institution or
license, the cure of souls of and in the entire parish ; but that cure
can only be deputed to or divided between them and others by the
like authority of the Bishop ; and if an Incumbent or Perpetual
Curate desires to have the assistance of a permanent Curate, the
Bishop's license or authority is necessary. The canons, ancient and
modern, are express on the subject. The Bishop, if he disapproves
of the clergyman nominated, may refuse his license. The person
nominated, or, perhaps, the Incumbent, might obtain a mandamus
to compel the Bishop to examine the person nominated, and inquire
into his fitness ; but if the Bishop returns that he has done so, and
conscientiously disapproves of the person in question, the matter
would end there, as he could not be compelled, by a Court of Law,
to approve when he disapproved. This is clear, from The King v.
Archbishop of Canterbury and Bishop of London {a) ; Murray v.
Archbishop of Armagh^ unreported. It is not necessary to consider
whether or not further redress might be obtained from the Metro-
politan. If an Incumbent has no right to have the permanent
assistance of a Curate, without the approbation or license of his
Bishop, it is. difficult, if not impossible, to discover any valid reason
for his being clothed with an absolute right to obtain occasional
assistance, by allowing a clergyman, not beneficed or licensed in the
diocese, and forbidden and inhibited by the Bishop, to preach and
officiate in his church, when all the evils already mentioned might
arise. If the Incumbent have no such right, then he was not enti-
tled to have an opportunity allowed to him for showing cause against
the issuing of the inhibition. But, in point of fact, Mr. Miller had,
at the meeting of the 7th of August, an opportunity of stating his
reasons against Mr. Potter being inhibited. It is to be presumed
that Mr. Miller urged every topic )ie could, to induce the Bishop not
to prevent Mr. Potter preaching ; and he appears, by his letter of the
10th of August, to have pressed the Bishop, on that 7 th of August,
with the pecuniary circumstances of his case ; but the Bishop
decided not to allow Mr. Potter to preach, as then communicated to
Mr. Miller in person, and afterwards by the letter of the 8th of
August to Mr. Miller, and which was to have been made known to
Mr. Potter. Mr. Miller, in his reply of the 10th of August, again
(a) 15 East, 135-6.
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xli
urges reasons against Mr. Potter being inhibited, bnt precluded all 1861
farther discussion, by asserting his own absolute control over his !!^"**J *^^'
pulpit There is no claim, on the part of Mr. Miller, by that letter, bp. of down
for a further hearing for himself or Mr. Potter ; so that the argument ^*
in support of his right to be heard in opposition to the issuing of the . '
inhibition is scarcely admissible, unless pushed to the extent that a suit Judgment
should have been instituted and decided before Mr. Potter could be
inhibited.
On the whole, therefore, I am of opinion that the Bishop
had a legal right to prohibit Mr. Potter, as he has done, by -
the inhibition of the Uth of August, from preaching or offici*-
ating in the parish church of Shankhill, or elsewhere in his diocese ;
and also to prohibit Mr. Miller from permitting Mr. Potter to do so ;
and that, without assigning any cause for so doing, or allowing the
parties prohibited an opportunity of showing cause against the
issuing of such prohibition. Though holding that the Bishop •
has the legal right to act as mentioned, I do not mean to con^
vey that such right should be exercised without his having
good cause for so inhibiting a clergyman; but merely that the
Bishop has the legal right vested in him, «o to decide as to the
propriety of permitting or not permitting a clergyman holding no
benefice or cure in his diocese, nor any license from a superior
Ordinary, or from the Crown, to preach or officiate in his diocese ;
and the sentence must be in accordance with this view. But, as no
censure or punishment is required or prayed, the only other matter
to be considered is the question of costs. I have not entered on the
subject of the oath of canonical obedience taken by Mr. Miller at
bis institution, ** that he will perform true and canonical obedience
to the Bishop of Down and Connor, and his successors, in all things
lawful and honest," or his ordination vow ; because it is quite clear
that he believed that the Bishop had no lawful authority to prohibit
Mr. Potter from preaching; and, further, that he believed there
was nothing in Mr. Potter's conduct to justify that inhibition.
Besides, the suit is not framed, either in its statements or prayer, as
a suit to punish Mr. Miller for perjury; the substantial question
raised thereby being that of the Bishop's jurisdiction, the oath of
canonical obedience being rather thrown in to support the case
made ; and there is not so much as an allegation that he wilfully or
knowingly violated same. The very suggestion that an Incumbent
of long standing and high character was induced to offer resistance
to his Bishop, and subject himself to a charge of having violated
bis oath, shows with what caution, delicacy and judgment, the right
(^ inhibiting clergymen from preaching in a diocese should be
/
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-xlii
Appendix.
1861.
y , *
BP. OP DOWN
V.
ItflLLBR.
Judgments
ezerciaed. The act will always be considered by the person inhibited,
and his friends, as an insult ; and the more he is esteemed, the wider
will be the circle of irritation. In an ordinary suit by a Bishop, to
enforce discipline, or the performance of duties, costs would have
been given as a matter of course; but the only breach of discipline
here imputed depends on the final decision on a point of law, never
before, that I can discover, submitted for adjudication by any Court
since the Reformation. Though I have now arrived, without doubt,
at a decision in favour of the Bishop's authority, it is well known
that many able lawyers have entertained, and still entertain, a
different opinion on the subject. In 1838, the late Dr. Miller,
presiding in the Metropolitical Court of Armagh as Surrogate (not
being at that time, as he afterwards was, Vicar-General and Chan-
cellor), referring to this opinion in Office v. Nixon, volunteered
dicta on this subject of pulpit jurisdiction, which was not involved
in that case, and to some extent adopted Dr. Phillimore*s views,
already adverted to, though he qualified them by the words respect-
ing the Bishop's approval, already mentioned ; however, his language
was such as to mislead unprofessional men, who had Dr. Phillimore's
opinion before them, and which related solely and exclusively to the
power and authority of the Bishop. This judgment of Dr. Miller
was circulated among the clergy, and commented upon, as already
mentioned, as conceding the control of the pulpit. When Mr. Miller
found himself treated in what he considered to be a hard and unjust
manner, and perhaps somewhat irritated at a sudden and unexpected
interruption of his arrangements to extricate himself from pecuniary
liabilities incurred by him to promote a pious and good object, be
tried back on his supposed rights, and naturally relied on a judg-
ment delivered in his own Metropolitical Court, of which, it is
reasonable to presume, be had a recollection. Both parties (whether
wisely or not is beside the question) having resolved to have the
validity of the Bishop's claim put in a train for legal adjudication,
the suit seems to have been fairly conducted for that purpose. The
question was such as to necessitate the arguments of able Counsel,
the expense of bringing whom down specially to Armagh would have
been extremely heavy.
;. This was properly met by a consent to have the legal argument
OA the exceptions to impugnants' pleadings carried on in Dublin,
and thereby each party was saved a large expenditure — more, in
my judgment, than would cover the whole costs of the suit which
oonld have been decreed to the Bishop, even if costs should be
Awarded against the impugnanis. Though the Advocates for impog-
iiants indulged somewhat freely in imputing improper motives to
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xliii
the Bishop, and drew on their imagination in that respect, there not 1661.
heing a fact suggested by plea or letter to warrant any inference of ^IfH.^!-,^
the kind, I cannot impute to impugnants the impropriety of having bf. of down
suggested such attacks, which Counsel, in the heat of argument, ^*
made on the opposing party. Further, Mr. Potter had beeu
ordained and licensed in the diocese of Down and Connor, wherein Judgmtnt.
he held a cure up to 1849. when he obtained a perpetual cure in
Leighlin, but continued to preach and officiate occasionally in his
former diocese up to the period of this transaction, with the privity
of the Bishop, without any fault being imputed to him in respect of
his orthodoxy, or otherwise ; and though the Bishop, on the 7th of
August, told Mr. Miller he disapproved of the tone of a sermon
preached by him, Mr. Potter, on the 12th of July, and of a letter
subsequently published, he does not appear to have intimated to
Mr. Potter that he objected to his preaching in his diocese. Mr.
Potter was thus left free to preach as before in the diocese, and
undertook to do so on the 12th of August for Mr. Miller. Mr.
Miller, in his interview of the 7th of August, appears to have
declined to communicate the Bishop's objection to Mt. Potter, until
he should have received a letter from the Bishop^ containing his
views. So the Bishop wrote the letter of the 8th of August, which
seems to have been received on the 10th of August, when Mr.
Miller replied thereto, in the manner already stated; but Mr.
Potter had nothing to do with this letter; and, as he appeared for
the first time in Belfast on the 1 1th of August, never seems to have
known he was objected to until that day. He was publicly an-
nounced to preach on the 12th of August, where he was well known,
and seems to have been esteemed as a preacher. All this was very
unfortunate, as tending to produce great irritation among the laity,
who always stand by their favourite clergy with zeal, and often
without temper or moderation, and also as tending to produce feel-
ings in Mr. Potter's mind that he was lowered in public estimation,
if not insulted. Neither he nor Mr. Miller would yield ; and the
sermon proceeded as stated, without anything wrong being suggested
to have been uttered by Mr. Potter on the occasion. Judging from
the tone of Mr. Miller's letter of the 10th of August, I do i^)t think
that he would have invited Mr. Potter to preach, nor probably *
would Mr. Potter have accepted of an invitation to preach in the
diocese, if the Bishop had intimated to him, after the sermon of the
12th of July, and before the announcement for the 12th of August,
that he objected to him so doing ; and I do not consider either him
or Mr. Miller guilty of a deliberate attempt to set the Bishop's
authority at defiance ; who, if he had declared his views at an
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xliv Appendix.
1861. earlier period, . would most probably have been obeyed, and this
C^nri^^. ^^ ^^^ ^^^^^ j,^^, ^^ necessary: or Mr. Potter might have
BP. OF DOWN obviated the Bishop's objections, which were only to the tone and
^' temper of his sermons (if he would not be satisfied with Mr. Pot-
MILLEB.
ter^s promise on the subject), by sending the Bishop the sermon
Judgment, he intended to preach, to satisfy him that nothing would be uttered
tending to increase or cause bad or angry political feelings. Under
all these circumstances, I think that the sentence should be pro-
nounced without costs, thus leaving each party to pay his own
costs of this suit.
Decree. Decree and declare that said Eev. T. F. Miller be admo-
nished and inhibited from permitting the Rev. S. G. Potter
to perform Divine Service, or administer the Sacraments, or
preach in the said parish church of Shankhill, otherwise
Belfast, or elsewhere in the said parish, mentioned or re-
ferred to in the articles exhibited on the part of the Pro-
moter of the Office, until licensed or duly authorised thereto ;
and let the parties respectively abide their own costs in
this suit.
Decree and declare that the Rev. S. 6. Potter be admonished
and inhibited to abstain from performing Divine Service,
or administering the Sacrament, or preaching in the parish
church of Shankhill, otherwise Belfast, mentioned or refer-
red to in the articles exhibited on the part of the Promoter
of the Office, or ebewhere in the diocese of Down and Con-
nor, until licensed or otherwise duly authorised thereto;
and let the parties respectively abide their own costs in
this suit*
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INDEX.
ABANDONMENT.
See Specific Pxbfobmance.
ABILITY TO PAY.
See Insolvxnt.
ABSOLUTE INTEREST.
See Will, 6.
ACQUIESCENCE.
See Specific Performance.
ADJUDICATION IN IRELAND,
EFFECT OF, ON PERSONALTY
OP BANKRUPT SITUATE
IN AMERICA.
See Conflict of Laws.
ADJOURNMENT SINE DIE.
See Final Examination.
ADMINISTRATION SUIT.
See Practice, 2.
ADMISSION.
See Will, 4.
AFFIDAVIT OF REGISTRY.
See Judgment Mortqaqe, 1.
AFFIDAVIT OF REGISTRATION,
DEFECTS IN.
See Judgment Mortgage, 6.
AFFIDAVIT, SUPPLEMENTAL.
See Judgment Mortgage, 5.
AFFIDAVIT, VALIDITY OF.
See Judgment Mortgage, 2, 3, 4.
AGENT.
See Contract.
AGREEMENT TO MORTGAGE.
See Priority.
1858,
AMENDMENT ACT
CHANCERY.
See Waste.
ANNUITY.
See Will, 11.
APPEAL.
See Issue.
APPOINTMENT.
See Will, 7.
APPORTIONMENT.
See Landed Estates Court.
ARREARS OF ANNUITY.
SeeVfuA^ U.
BANKRUPT SITUATE IN AME-
RICA, EFFECT OF ADJUDI-
CATION IN IRELAND ON
PERSONALTY OF.
See Conflict of Laws.
BANKRUPTCY.
A employed B, a builder, to take down
the front wall of his house, and exe-
cute some other repairs. While the
' works were in progress, C, the occu-
pier of the adjoining house, served a
notice upon A, that injury was Kkely
to result to his house from the repairs,
and that he would hold A respon-
At
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528 BAR OF THIRDS.
CHARGE ON LANDS.
sible. B, upon this being mentioned
to him, wrote on the estimate of the
works the following memorandum : —
^* In carrying out the foregoing work,
I hereby undertake to hold myself
responsible for any injury done to
the adjoining houses.'' Some works
in addition to these in the estimate
were done, the contract was com-
pleted, and B paid in fiiU for alL
G brought an action against A, aver-
ring negligence, and idleging various
injuries to his bouse from the works.
B, upon being called upon to settle
or defend the action, made no reply,
and soon after became bankrupt, and
absconded. A, having had to pay
£\9\. 7s. lid. damages and costs, and
£60, his own expenses in the action,
sought to prove for £251. 7s. lid —
ffeldy that (supposing the memoran-
dum to constitute a contract upon a
valuable consideration) the damages
which C might recover against A
were not necessarily identical with
those contemplated by the guarantee,
and that A could not prove fot the
above sum, either as for a debt pay-
able upon a oontingency, within sec-
tion 257, or as for a liability to pay
money upon a contingency, within
section 258. Banktcy., &c. In re
Quin 57
BAB OF TfflRDS.
See Settlement.
BEQUEST.
See Will, 3.
A testator bequeathed one-half of the
interest of a sum to A and B, and
the other half to G and D during
their natural life, and, after the death
of A, B, 0 and D, he bequeathed the
principal to E, and he appointed resi-
duary legatees. A died, and then B,
leaving C and D surviving. — Held^
that no part of the principal or inter-
est went to E during the life of G
and D.
Heid also, that the executrix of B,
and not the residuary legatees, was
entitled to the interest of one-half
during the lives of C and D. B
Gray V. Bohinsan 205
BEQUEST TO ONE AND HER
GHILDREN.
See Will, 1.
BILL OF SALE BY SHERIFF.
See Judgment Greditoiu
CHANCERY AMENDMENT ACT.
See Waste.
CHARGE.
See Will, 7.
CHARGE ON LANDS.
A testator devised all his estate In a
certain chattel leasehold interest in
lands, and '*all other mj property
and worldly estate whatsoever," to a
trustee, upon trust, in the first place,
to preserve the said chattel interest,
by payment of head-rent and renewal
fines. He then bequeathed certain
pecuniary legacies, and, among others,
a sum of £100 to the trustee; ^and
as to, for and concerning all the resi-
due of my interest in my said lands,
and as to, for and oonceming the
residue, similarly, of my other per-
sonal estate and effects, snbjeot to
the hereinbefore trusts, I hereby give,
bequeath and devise all such residue
of my interest in the said lands, as
also all such the residue of mj per-
sonal estate aud effects, in trust for
my eldest son." The testator then
charged the lands and the residue
of his personal estate with certain
sums for younger children. The tes-
tator then declared that, in case he
should die leaving no aon, but leav-
ing an eldest or only daughter, then
he devised all his interest in said
lands, and all the residue of his per-
sonal estate, in trust for such daugh-
ter, with remainders over; and he
directed ''that all the Intermediate
rents and profits of my said lands,
as well as of the residue of my said
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CHARITY.
CONSIDERATION. «29
Other personal estate and effects,
which shall accrue, arise or be made
out of both said fands/' subject only
to the proTision made for testator's
wife by their marriage settlement,
and to his debts and funeral expenses,
^and to the several legacies herein-
before enumerated,** should go to the
trustee. In 1846, Master Henn had
made a report, afterwards confirmed
by a decree in Chancery, by which
he found that the legacies under the
will were not charged upon testator's
interest in the limds. — Held^ that,
upon the true construction of the will,
the legacies were not charged upon
the lands.
Held also^ that the legatees were
bound by the Master's report
The Judges of the Landed Estates
Court are bound by a final decree of
the Court of Chancery.
In re Kelly (9 Ir. Chan. Rep. 103)
commented on* Ch. Ap. In re La-
nauze 19
CHARITY.
See Trust.
CHILD'S SHARE.
See Deed, 1.
COMBflTTAL, FORM OF.
See Committal for Uiisatisvac-
TORT AnSWEBINO.
COMMITTAL FOR UNSATISFAC-
TORY ANSWERING.
It is not necessary that the warrant
committing a bankrupt for unsatisfac-
tory answering should state that the
questions were put by the Judge, or
that such should have been the fact
The words "by and before me," at
the commencement of the deposition^
are sufficient.
In order to discharge the bank-
rupt, the Court before which he is
brought on habeas corpus most be
fully satisfied that the Judge below
was wrong in committing him.
The question to be decided in each
case is, whether the answers of the
bankrupt are such as would satisfy
the mind of a reasonable man. Bktcy.,
&C., In re Courtney 410
COMPUTATION OF TIME FOR
APPEALING FROM LANDED
ESTATES COURT.
The three months within which ah
appeal from an order or decision of
the Landed Estates Court must be
entered, in accordance with the 4l8t
section of the Landed Estates Act
(21 & 22 Fic, c. 72), are to be com-
puted exclusive of the day of the date
of such order or decision, and inclu-
sive of the day on which the appeal
is entered. Ch. Ap. In re Kenne-
dy^i Estate 298
CONFLICT OF LAWS.
The adjudication in Ireland, by ^he
operation of section 267> vests the
property of the bankrupt, situate in
a foreign State, in the assignees, so
far as the law of this country is con-
cerned.
The law of New York recognises,
to a certain extent, the rights of the
assignees under the adjudication.
A British creditor of a bankrupt,
who has, by the means of the laws
of any foreign State, succeeded in
obtaining possession of the goods of
a bankrupt situate in that State is, in
this Court, answerable for them to
the assignees.
Remarks on the status of assignees
in this Court, as recognised by foreign
law. Banktcy., &c. In re Robin-
son 885
CONSIDERATION.
See Husband and Wive.
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«30 CONSTRUCTION.
CONSTRUCTION.
See COTBNANT.
Deed, 1, 2.
Will, 1, 3, 5, 6, 7, 8, 9, 10,
11, 12, 13
CONTRACT.
Lands were conyeTed by a registered
deed to a purchaser, subject to " ex-
isting leases and lettings made to the
undertenants " of the vendor Held^
that a parol contract for a lease, with
part performance of which the pur-
chaser had no notice, was not an
existing lease or letting within the
meaning of the deed.
Sembie — A contract by the vendor,
duly signed, according to the Statute
of Frauds, would be an existing lease
or letting, within the meaning of the
deed, and binding on the purchaser.
The distinction between equitable
estates and equitable rights consi-
dered.
In a suit for specific performance
of a contract relating to lands, the
documents relied on to prove the con-
tract must be put in issue specifically
by the petition.
Sembie — ^Part performace of a con-
tract is not binding on a purchaser
for valuable consideration without
notice. R. Rice y. O'Connor 510
CONTRIBUTION.
See Renewal Fines.
CONVENTIONAL RENTS,
ARREARS OF.
S. S., a lessee of certain premises, for
125 years from the 25th of March
1 782, by a lease, dated the 21st of July
1787, and which contained the usual
clauses of distress and re-entry, de-
mised the same to £. H., for 120
years from the 25th of March then
last past. Twenty-two years' ar-
rears of rent accrued due to the re-
representatives of the lessor in the
last-mentioned lease.— Zi^e/c^ that.
COVENANT, &<5.
although S. S. had no reversion expect-
ant on the determination of the said
lease of the 21st of July 1787, yet
that the rent reserved by the said
lease was a conventional rent, and that,
therefore, the right of the representa-
tives of S. S. to the rent during the
residue of the term was not barred by
theS &4 FT. 4, c. 27, s. 2. L. E. Ct.
In re Tumer^s Estate 304
COSTS.
See Partition Suit.
PaACTICE, 2.
COSTS, VARIANCE AS TO SUM
RECOVERED FOR.
See Judgment Mobtgaoe, 3.
COVENANT.
See Deed, 1.
Mortgage, 1.
Tenant for Life.
A lease for 500 years, dated 14th
December 1669, contained a covenant
by the lessee, his executors, adminis-
trators and assigns, with the landlord,
his executors, administrators and as-
signs, not to sell before the first proffer
be made to the landlord, his execu-
tors, administrators and assigns, to
the end that they might have the first
refusal thereof, and pay as much as
any other person should bona fide
offer. — MeldL^ that is a covenant that
runs with ;the land, but that it is not
a perpetual one ; and, therefore, an
assignment of the tenant's interest
having been made 140 years ago, it
must be presumed that the landlord
declined the offer or waived his right,
and the tenant must now hold dis-
charged from the said covenant.
L. E. Ct. In re Houghton 136
COVENANT, COMMUTATION OF.
See Renewal, 1.
COVENANT FOR RENEWAL.
See Specific Performance.
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COVENANT, &c.
COVENANT TO SETTLE
FUTURE ESTATE.
See Dbxd, 2.
COVENANT, VOLUNTARY.
See HusBAHD and Wife.
CREDITORS.
See Practice, 2.
CY-PRES.
See TsusT.
DAMAGES.
See Railway (Ib.) Act.
DEBENTURE-HOLDERS.
See Theatbb.
DEBT PAYABLE UPON A
CONTINGENCY.
See BAifutuPTCT.
DECREE IN CHANCERY.
AUhongfa a Jndge of the Landed Estates
Court will not act in opposition to,
but is bound bj, a final decree in
Chancery — [See In re Lanauze^ 11
Ir. Chancery Rep. 19] — ^yet where it
appears that the rights of minors have
been prejudiced by such decree, the
Court will retain the purchase-money,
to enable the minors to obtain redress
in Chancery. L. E. Ct. In re Hunti
Eiiate 299
DEED.
1. A father joined in a settlement exe-
cuted on the marriage of his daughter,
wluch contained a recital that he was
desirous to give her, as a marriage
portion, such sum or child's share as
he might be entitled to dispose of,
which child's share it was calculated
would be at the least £6000, but the
same, or the precise amount thereof,
could not be ascertained until his de-
cease; and the intended husband,
who had a power to jointure to the
amount of £10 per cent, on the for-
tune which he should receive with
DEED.
531
his wife, appointed a jointure of £500
a-year, which was also collaterally
secured on other lands, not the sub-
ject of the power. The daughter died
in G.'s lifetime*
Heid^ that the recital amounted to
an absolute covenant that his daugh-
ter should have, on his death, an equal
share of his personal estate with his
other children.
Semble — ^If it was not a covenant,
it would have amounted to a binding
representation to the same effect
Held aleOf that the obligation was
not discharged by the daughter's
death in his lifetime.
Held aleo, in calculating the amount
payable under the covenant, sums
advanced to other children by the
testator in his lifetime should be taken
into account and be added to the
assets.
Held aUOf that interest should not
be calculated on the sums so advanced.
R. Dueketi T. Gordon 181
2. A marriage settlement vests freehold
leases in trustees, '< to hold to the use
of the said A and his heirs and as-
signs, from the perfection of these
presents, for and during the term of
his natural life, without impeachment
of waste," with a power to lease, re-
mainder to said trustees to preserve,
and, from the decease of A, to secure
a jointure of £80 to B (A's wife).
Then follows a covenant by A, charg-
ing the jointure on after-acquired
estate, with power of distress ; *' and
further, that said lands, after the de-
cease of the survivor of A and B, in
case there should be but one child of
said marriage, to the use of such only
child, and the heirs of his or her body
lawfully issuing; and in case there
should be more than one such child,
then to such children in such shares
and proportions as the said A shall
by deed or will appoint ; and in de-
fault of such appointment, then to
the use of all the children, as tenants
in common, share and shiure alike."—
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532
DEED.
FRAUD.
ffeld^ that the words " and his heirs "
should be rejected, and that A takes
a life estate.
That the claase beginning <<and
further ** is a limitation in continua-
tion of, and direct sequence upon, the
limitations to trustees to preserve.
iS^m^^— That if that clause be a
covenant to settle af^er-acquired pro-
perty on the children, a Court of
Equity would not mould the trusts in
any manner, as they are fully declared.
SemhU — That, assuming it to be
such a covenant, after*acquired pro-
perty, settled, irrespective of such
covenant, by A on a child, must be
brought into hotchpot. L. £• Ct. In
re Hammerify 229
DEPOSIT OF LEASE, TO PRE-
PARE LEGAL MORTGAGE.
A deposit of title-deeds, to be delivered
to a solicitor, for the purpose of pre-
paring a legal mortgage to secure an
antecedent debt and future advances,
though there be no agreement in writ-
ing for a mortgage, constitutes a valid
equitable mortgage. R. Bulfin v.
Dunne 198
DESCENDIBLE FREEHOLD.
An estate of descendible freehold, set-
tled to the separate use of a married
woman, cannot be validly conveyed
by her without fine or statute deed.
C. Adami y. Gamble 269
DESCRIPTION OF PARTIES.
^Sm Judgment Mortgage, 5.
DEVISE.
SeeWihLy 11, 12.
DISCLAIMER OF LANDLORD.
See Renewal, 2.
DISTRIBUTIONS, STATUTE OF.
See Settlement.
DOWER.
i%e Practice, 1.
EQUITABLE MORTGAGE.
See Deposit of Lease, to peb-
PARB Legal Mortgage*
ESTATE TAIL.
See Will, 5.
ESTOPPEL.
See Practice, 1.
EVIDENCE.
See Grant.
EXECUTRIX AND RESIDUARY
LEGATEES.
See Bequest.
EXONERATION.
SeeWii^h^ 2.
FIERI FACIAS.
See Judgment Creditor.
FINAL DECREE IN CHANCERY
BINDING ON LANDED
ESTATES COURT.
See Charge on Lands.
FINAL EXAMINATION.
Where a bankrupt had traded recklessl j,
by means of accommodation bills, and
had got extensive credit by repre-
sentations that he was solvent, and
that said biUs were for yalue, the
Court adjourned his final examina-
tion, sine diej upon the state of facts
disclosed by his schedule. Banktcy.,
&c. In re Loekhart 68
FINE.
See Descendiblb Freehold.
FORM OF COMMITTAL.
See Committal for Unsatis-
FACTORT Answering.
FRAUD.
See Mortgage, 1.
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FREE ADMISSION.
FREE ADMISSION.
See Theatre.
FSEEHOLD.
See Descerdiblb Freehold.
FUTURE ESTATE, COVENANT
TO SETTLE.
See Desd» 2.
GENERAL ORDER.
See Computation of Time for
Appealino from Landed
Estates Court.
GRANT.
Bj deed of 1769, A granted a perpetual
yearly rentcharge of £134, payable
out of certain lands held by him for
three lives, perpetually renewable.
That deed was lost ; but it appeared,
from a memorial thereof, that A had
granted to B and C, for the uses
mentioned in the deed, a yearly rent-
charge of £134, for ever, issuing out
of the said lands. The rentcharge
was paid by the owners of the lands
from 1769 down to 1860, when a peti-
tion was presented to the Landed
Estates Court for a sale of the rent-
charge. — Held (overruling a decision
of a Judge of the Landed Estates
Court), that the memoria), coupled
with evidence of the payment of the
rentcharge down to 1860, was suffi-
cient evidence of a perpetual subsist-
ing rentcharge, so as to enable the
Court to sell. Ch. Ap. In re Hard-
ing 29
HEIRS.
See Will, 5.
HOTCHPOT.
See Deed, 2.
HUSBAND AND WIFE.
By a marriage settlement, lands were
conveyed to trustees, to the separate
use of A, the wife, iot life ; and, in
INDEMNinCATION. «33
case B, the husband, should survive
her, to him for life, and, after the
death of the survivor of A and B,
in trust to convey to the child or
children of the marriage, as A and B
should, by deed or will, appoint, and,
in default of appointment, to the
children equally, and, in default of
issue, to the survivor of A and B.
There was issue ; and by deed recit-
ing ataX A, in order to further the
prospects in life of the children, and
that B, for the like purpose, agreed
to assign his reversion, in case he
should survive his wife. A, for the
considerations aforesaid, and lOs., con-
veyed her life interest to trustees, in
trust to receive the rents during the
life of A and B, and apply them for
the benefit and maintenance, &C., of
the children, in such manner as the
trustees might deem sufficient. And
it was agre^ that the trustees should
have full power and control over the
property during the life of A and B,
free from the control or intermeddling,
debts, &c., which at any time might
have afiected the estate of A and B ;
and B covenanted that, if he should
survive his wife, he would, if called
on by the trustees, assign his estate
and interest to the trustees, on the
said trusts. — Held^ that the children
were not within the consideration,
and could not enforce a specific per-
formance of B's covenant to assign
his interest. R. Joyce y. Hutton 123
ILLEGITIMATE SON.
See Will, 5.
IMPEACHMENT.
See Pabtnehshif Account, sta-
ted AND SETTLED, WHAT
AMOUNTS TO.
IMPLICATION.
See Will, 3.
INDEMNIFICATION.
See Tenant foe Life.
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534
INSOLVENT.
JUDGMENT:M0RT6A6E.
INSOLVENT.
The decision in this case, anU^ voL 9}
p. 559» confirmed.
Property acquired by an insolvent,
subsequently to his insolvency, is
charged with a first trust for his sub-
sequent creditors; and, before the
Court will attach such subsequently
acquired property, it must be satisfied
that the insolvent is of ability to pay
his scheduled debts ; and this ability
to pay is not to be determined by the
casual possession of a fund, but by
the possession of assets ultra the
liabilities subsequently incurred. —
Banktcy., &c. In re Johnston 62
INTEREST.
See Railwats (Ir.) Act.
INTEREST AND PRINCIPAL.
See Bequest.
ISSUE.
See Will, 5.
Where the Judge of the Court of Pro-
bate directs issues respecting testa-
mentary papers, the Court of Appeal
will not vary his order, merely on
the ground that the issues directed do
not exclude all consideration of ques-
tions of law. Ch. Ap. Newton v.
Newton 239
JOINTURE.
See Will, 14.
JUDGMENT.
See MoRTGAQB, 2.
A judgment recovered in 1819, and
never revived nor re-docketed, must
be postponed not only to the gales of
a rentcharge created by the judgment
debtor in 1827, and assigned in 1841,
which accrued due after that period,
but to the arrears of it which were
then due, and which were included
in the assignment C. Walcott v.
Smyth 266
JUDGMENT CREDITOR*
The defendant in an execution being
the registered proprietor of shares in
a ship, a writ of ^. fau was delivered
to the Sheriff; and the solicitor for
the creditor, by the direction of the
Sheriff, procured the certificate of
registry from the ship, and delivered
it to the Sheriff, who retained it.
The Sheriff was registered at the
Custom-house, und^r the Merchant
Shipping Act, as the owner of the
shares, which were afterwards sold
by him and transferred to the pur-
chaser by a bill of sale, which was
also registered. — Heldy that the sei-
zure was effectual, although the Sheriff
did not go on board the ship, and
that the property in the shares was
regularly transferred by the bill of
sale. R. Harley v. Barley 451
JUDGMENT MORTGAGE.
1. In an affidavit filed under the provi-
sions of the 6th section of the 13 and
14 Vio.j c. 29, for the purpose of con-
verting a ju<^ment into a mortgage,
a description of the defendant's last
known place of abode, as ^' late of the
town of Galway, but now of the
county of Dublin,'' was held insuffi-
cient, as being too vague.
The same affidavit stated the
amount of the judgment to be £894,
and £3. 2s. 8d. for costs; whereas
the sum mentioned for costs on the
record was £2. 2s. 8d., the fee of £1
for registration having been added
to the costs in the afiodavit. — ffeld^
to be such a variance as invalidated
the affidavit. Ch. Ap. In re Fitz-
gerald's Estate 278
2. If an affidavit, filed for the purpose of
registering a judgment as a mortgage,
under the provisions of the 13 & 14
Ftc, c 29, substantially complies with
the requirements of the 6th section of
that statute, it is sufficient. There-
fore, where such an affidavit was
entitled in the same words as the
record of the judgment, and stated
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JUDGMENT MORTGAGE.
(inter alia) that '< J. T., the plaintiff,
by the name and description of J. T.,
of 1 16 Grafiton-street, in the city of
Dublin, solicitor, did, on the 15th of
July 1858, obtain a jadgment in the
Court of Excheqaer, against the
defendant in this cause, by the name
and description of £. S. P., of, &c.
that the usual or last-known
place of abode of the said E. S. P^
the defendant in this cause, the per-
son whose estate is intended to be
affected by the registration of this
affidavit, is at, &c • • . • that, to the
best of deponent's knowledge and
belief, the said £. S. P^ the defend-
ant in this cause, is, at the time of
swearing this affidavit, seised or pos-
sessed of," &c., &c Held, first, that
the above affidavit contained a suffi-
cient statement of the title of the
LACHES.
535
Secondly; that the affidavit suffi-
ciently identified the defendant in the
judgment with the person whose
estate was sought to be affected by
the registration of the affidavit Ch.
Ap. In re Power's Estate; Taylor ,
appellant 288
3« An affidavit registered under the 13,
1 4 Vie^ c. 29, s. 6, stated that the sum
recovered by the judgment was £265,
with £3. 2s. 8d. for costs. The record
of the judgment stated that the sum
recovered was £265, besides £2. 2s.
8d. for damages, and £1 for registry.
Heldj that the above was not such a
variance as would invalidate the affi-
davit. Ch. Ap. In re Edgeworth*s
Estate; Davis, respondent 293
4. In an affidavit registered under the
13 & 14 Vie., c. 29, s. 6, a statement
*'that deponent was, and still is, a
gentleman," was held to be a suffi-
cient description of the plaintiff, where
he had not any trade or profession.
Ch. Ap. In re EdgewortKs Estate ;
Smith, respondent. 294
5. An affidavit filed for the purpose of
registering a judgment as a mortgage,
under the provisions of the 13 & 14
Vie., c. 29, was entitled in the margin
"J. M., of D., in the county of W.,
farmer, plaintiff; T. J. F., of B., in
the county of W., Esq., defendfmt.''
The affidavit stated that J. M., of,
&C., &c., had recovered a judgment
^' against the defendant in this cause,
by the name and description of Tho-
mas Joseph Fitzgerald, of Ballina-
parka, in the county of Waterford,
Esq."— JTeid; that the above was a
sufficient description of the name and
usual or last known place of abode of
the defendant
Semble, that a supplemental affida-
vit, filed under the provisions of the
21 & 22 Vic, c. 105, may be filed
after the death of the conusor. Ch.
Ap. In re Fitzgeralds Estate 356
6. Statements in the title of a judgment
mortgage affidavit may be incorpo-
rated, by reference, in the affidavit
itself. A description of the residence
of the parties, in an affidavit to regis-
ter a judgment as a mortgage, vrill be
sufficient, if it be their ordinary trade
residence. The description must be
substantially contained within the
affidavit itself. Such affidavits need
not be construed with strict gramma-
tical accuracy. [McDowell Y.lVheatly
commented on and distinguished.}
Banktcy., &c In re Smith Sf Ross
394
JURISDICTION.
See Landed Estates Court.
Lunacy.
Protection Order.
Bentcharge.
Waste.
The time of a trader's " residing or car-
rying on business in Ireland" (Irish
Bankruptcy & Insolvency Act, s. 31),
means the time of presenting the peti-
tion. The Irish Court has exclusive
jurisdiction over such trader, though
he owe debts contracted in England,
while he was residing and trading
there. Banktcy., &c. In re San-
derson 421
LACHES.
See Renewal, 2.
Specific Performance*
2
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536 LAND IMPROVEMENT ACT,
MERGER.
LAND IMPROVEMENT ACT.
A rentcharge granted to secure a loan
to an owner in fee, subject to a rent,
bj a grant prior to the 14 & 15 Vic.^
c. 20, has priority over the rent, under
the Land Improvement Act, 10 Vic,
c. 32, 8. 38.
Semble, — ^Where the loan is made
to a tenant, the rentcharge has not
priority over the rent reserved by his
lease, such rent not being a charge
or incumbrance, within the meaning
of the 38th section of the Land Im-
provement Act. B. AUomey-Gene-
ral V. Evans 171
LANDED ESTATES COURT.
The power given to the Landed Estates
Court under the 72nd section of the
21 & 22 Vie^ c. 72, is discretionary,
and exists both in the case of an
incumbered and unincumbered estate.
The consent of the landlord is not
necessary ; but the Court requires
that it should be clearly shown that
his interest is not in any appreciable
degree made less secure, less enjoy-
able, or less marketable than before.
If, however, there is any reason to
believe that the petition has not been
presented for a bona fide sale, but for
the purpose of obtaining an appor-
tionment, the Court will make such
an order as will apportion the rent,
only in case the proceedings be duly
prosecuted, and the sale duly had.
L. £. Ct. In re ComynU Estate 320
LANDED ESTATES COURT,
FINAL DECREE IN
CHANCERY BINDING ON.
See Charob on Lakds.
LANDLORD, DISCLAIMER OF.
See Renswal, 2.
LAW, QUESTION OF.
See Issue.
LAWFUL MALE HEIR.
See Will, 9.
LEASEHOLD CONVERSION ACT.
See Renewal, 1.
LEGACY.
See Will, 13.
LIABILITY TO PAY MONEY
UPON A CONTINGENCY.
See Bankbuptct.
LIMITATIONS, STATUTE OF.
See Conventional Rents,
Arrears of.
LOAN.
See Land IifFROVEMENT Act.
LOST DEED.
See Grant.
LUNACY.
C, having been found a lunatic, by inqui-
sition, obtained leave to traverse. The
Lord Chancellor directed one of
the Masters of the Court to act as
committee, and to oppose the traverse,
which he did by the General Solicitor
for Minors and Lunatics. The tra-
verse was successful. — Heldj that C.
was not entitled to have the receiver
discharged, without providing for the
costs of the Greneral Solictor for
Minors and Lunatics, incurred in his
case. C. In re Orosbie 432
MALE HEIR, LAWFUL.
See Will, 9.
MARRIED SONS AND
DAUGHTERS.
SeeWihi^ 18.
MARSHALLING.
See Mortgage, 2.
MEMORIAL.
See Grant.
MERGER.
. See Tenant for Life.
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MINOR'S RIGHTS.
MINOR'S BIGHTS.
See Decree in Chancert.
MISDESCRIPTION.
See Will, 8.
MISREPRESENTATION.
See Final Examination.
MOETQAQE, 1.
MORTGAGE.
1. S., being largely indebted to B. and
other persons, agreed with B. for a
further advance, on a mortgage of
yarioQS estates in Ireland. By the
deed of mortgage, S. covenanted that
the lands of E[., which formed part of
the security, were free from incum-
brances, and for further assurance.
No title was furnished by S., nor
search in the registry in Ireland made
by B. Before the entire advance was
paid over to S., it was discovered that
the lands of K. were subject to a
mortgage to E. B. thereupon applied
to S., who told him that E. would
release the lands on his (S.'s) request ;
on which assurance B. paid over the
residue of the loan to S. S., subse-
quently, by fraiMl, procured a release
Irom E., of which release B. was
made aware, but was ignorant of the
fraud. The fraud was discovered
after some months had elapsed. —
Held^ that B. was a purchaser for
value of the release, as having been
procured by S., in pursuance of the
covenants in the mortgage deed ; and
that, being ignorant of S.'s fraud, he
was entitled to retain the advantage
which the release had given him.
Ch. Ap. In re Burmester 1
2. A mortages Blackacre to B, and gives
him as a collateral security a judg-
ment which attaches on both Black-
acre and Whiteacre. Subsequently
B assigns his debt and securities to
C, and A at the same time mortgages
Blackacre to C for a further sum,
with a covenant against all incum-
brances except the mortgage to B. —
Heldy that C, as against a puisne
OBJECTION, &c. 537
incumbrancer, is entitled to be paid
the debt assigned to him by B out of
Whiteacre first, so as to leave Black-
acre unimpaired to meet the second
mortgage made to C himself. L. E. Ct.
In re Baddy's Estate 369
MORTGAGE, AGREEMENT TO.
See Pbiobity.
MORTGAGE, EQUITABLE.
See Deposit of Lease, to pbs-
PASE Legal Mostoage.
MORTGAGE DEED.
A mortagor, by a proviso in a mortgage
deed, agrees in a certain event to sell
to B, the mortgagee, for a fixed sum,
part of the mortgaged premises.—
Held, that the proviso was totally
void, as being an onerous engjsgement
entered into at the time of the mort-
gage, lu E. Ct. In re Edwards'
Estate 367
NAME.
See Will, 8.
NO REMEDY AT LAW.
See Rentchargb.
NOTICE.
See Contract.
Mortgage, 1.
OBJECTION FILED BY
ANOTHER PARTY, TAKING
ADVANTAGE OF.
See Objection to Incumbrance,
ON SetTlebcent of Final
Schedule in Landed
Estates Court.
OBJECTION TO INCUMBRANCE,
ON SETTLEMENT OF FINAL
SCHEDULE IN LANDED
ESTATES COURT.
The' owner of an estate sold in the
Landed Estates Court was held to be
estopped from objecting, upon the
settlement of the final schedule of
incumbrances, to a claim which he
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538
OWNER, &c.
had admitted, in his affidavit filed
as an answer to the conditional order
for sale, to be a charge upon the
estate. Ue had also suffered the
conditional order to be made absolute,
and a sale to be had, without disputing
the claim in question.
An incumbrancer cannot avail him-
self of an objection filed by another
party to the validity of a claim, to
which he has not himself filed an
objection. Ch. Ap. In re Pmoer^a
Estate; Beeves ptr. 295
OWNER, WHEN ESTOPPED.
See the foregoing.
PART PERFORMANCE.
See CONTBACT.
PARTIES, DESCRIPTION OF.
See JiTDOMKKT Mortgage.
PARTNERSHIP ACCOUNT,
STATED AND SETTLED,
WHAT AMOUNTS TO.
No precise form is necessary to consti-
tute a stated and settled partnership
account
An account drawn up in the hand-
writing of one partner, A, eight years
after the dissolution of the partnership,
stating the assets of the firm at the
time of the dissolution, and taking
the excess of the assets over the
original capital, as representing the
balance of profit over loss on the
several transactions, and stating the
amount drawn out by each partner,
and the amount coming to each, and
in which account A, after giving
credit for various payments made to
him by his co-partner, B, after the
dissolution, struck a iMdance against
himself, and which account was assent-
ed to by B : — Heldy a stated and settled
account, though some debts due to the
partnership were omitted as uncertain.
A party seeking to impeach or sur-
charge and falsify a stated and settled
account must state the fraud or
POWER.
error on which he relies, in the
petition.
If a partnership be admitted, the
books aire admissible in evidence, in
taking the account of the partnership
transactions; but the books of A
are not admissible against B to prove
a partnership, if it be denied. R.
Sim V. Sim 310
PARTITION SUIT.
The respondent in a partition suit
resisted the petitioner's claim, alleging
that the petitioner was not seised of
any portion of the lands in question.
Considerable expense was thus impos-
ed on the petitioner; but that expense
was entirely incurred before and at
the first hearing, at which a decree
for partition was made, and further
directions and costs reserved. At the
hearing on the return to the writ of
partition and further directions —
ffeid^ that the petitioner was not
entitled to be paid by the respondent
any portion of his costs up to and
including the first hearing. C.
Knox V. Mayo 265
PAYMENT.
See Gbant.
PETITIONER.
See Practice, 2.
PLAINTIFF, DESCRIPTION OF.
See JuDGMBlfT MOBTGAGB, 4.
PLEADING.
See Contract.
Partnkrshif Account, St a*
TED AND Settled, what
AMOUNTS TO.
Post-nuptial settlement.
See Husband and Wife.
POWER.
See Will, 7.
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POWER TO JOINTURE.
PRIORITY.
539
POWER TO JOINTURE, EXE-
CUTION OF.
A, beiDg tenant for life, with a power
to jointure, with remainder to B, his
eldest son by his first marriage, in
tail, charged a jointure, on his second
marriage, which was not authorised
bj the power. A and B afterwards
joined in barring the estate tail, for
the purpose of securing bj mortgage
a sum advanced to A. The disen-
tailing deed recited th^ power and the
charge of the jointure, and by it the
lands were conveyed to a trustee,
without prejudice to the jointure, to
such uses as A and B should appoint,
and, in default of appointment, to such
uses as were subsisting before the
execution thereof, so as to secure and
restore the former title to the lands.
By a contemporaneous deed, to which
the jointress was a party, reciting the
power and charge of the jointure, and
the contract for a loan of £1000 to A
and B, to be secured by a mortgage
discharged of the jointure, but to the
intent only that it should be postponed
to the £1000, and the interest on it,
and reciting the conveyance by the
disentailing deed, subject to the joint-
ure, A and B appointed the lands by
way of mortgage to secure the £1000,
and the jointress released the lands
from the jointure, with a proviso that
the release should take effect only for
the purpose of postponing the jointure
to the £1000. By another deed of
the same date, reciting the disentail-
ing deed, and that the lands were
charged with £1000, for the use of A,
he granted a rentcharge to a trustee
for B. — Heldf that the charge of the
jointure being void was not confirmed
by the deeds, and that the mortgage
deed did not operate as a re-grant of
the jointure, the intention being
merely to postpone the jointure to
the mortgage.
A tenant for life had a power, by
deed or will, to charge a jointure, not
exceeding £100 a-year, for every
£1000 which he should actually and
bona fide receive with his wife. On
his marriage, a life estate of his wife,
in a chattel interest in lands, was con-
veyed to him for life. The tenant
for life received, before the date of
the will, about £2000 out of the rents
of said lands. — Heldy that the charge
by his will of a jointure of £200
a-year was valid if £2000 was re-
ceived, and that, if said sum was not
received, the jointure should abate
proportionably. R. Brerelony* Barry
97
PRACTICE.
1. A widow filed a bill for dower against
alienees of her husband. In order to
make out her title to dower, the peti-
tioner was obliged to give in evidence
a deed, by which the estate had been
conveyed to the person from whom
her husband claimed. This deed con-
tained a recital that the legal estate
was outstanding in certain trustees.
The petitioner also gave in evidence
certain orders of the Court of Chan-
cery, to show that such recital was
mistaken. — Held^ that she was enti-
tled to a reference to ascertain the
lands of which she was dowable.
Ch. Ap. Kernaghan v. M'Nally 62
2. Where there are no incumbrances
prior to his, a petitioner having the
carriage of the suit is entitled to his
costs out of a fund the produce of real
estate, in the first instance, and in
priority to the demands and the costs
of crcNlitors in equal priority with
him.
Taylor v. Gorman (1 Dr. & W.)
observed on. B. Watson v. Fitz-
patrick 213
PRIORITY.
See Land Improvement Act.
A enters into an agreement, to the fol-
lowing effect : — *' That he should exe-
cute a mortgage, payable with interest
at £5 per cent., in four years, to B
and C, to secure to them an amount
awarded, viz., £3120, with interest at
£5 per cent, on the principal sum of
£2600, kte currency, from the 27th
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540
PRIORITY.
of April 1842, the date of the award,
A giving reasonable proof that he has
power to grant such mortgage, and
that the property to be mortgaged is
adequate securitj for it. — Held^ that
such an agreement (though not suffi-
cient to ground a decree for imme-
diate specific performance) would
authorise the Court of Chancery to
order A to select a sufficient portion
of his estates, and make it a security
in compliance with the agreement.
Held also^ that, after the lapse of
four years and A's death, it could not
be specifically enforced against the
heirs and devisees of A, but would
enable B and C to institute an admi-
nistration suit, and claim that a suffi-
cient portion of A's real estate be
applied in payment of the debt.
Held also, that this being so, it was
(after a sale in the Landed Estates
Court) to be regarded as It specific
charge, taking priority of general
creditors, but puisne to other specific
charges. L. E. Ct, In re Humble
132
PROCEEDINGS IN TRADE AS-
SIGNEE'S NAME, WITHOUT
HIS CONSENT.
A, a bankrupt, having become able to
pay in fuU, obtained an order of the
Court, directing that, upon paying
the creditors 20s. in the £1, and pay-
ing the assignees' costs, the carriage
of proceedings in bankruptcy should
be transferred, and the estate re-
assigned to him. The creditors were
paid in full ; but, owing to the delay
of the agent of the bankruptcy in get-
ting his costs taxed, A was unable to
pay off said costs, and get the carriage
of proceedings transferred, and the
estate re-assigned. Upon giving B,
the official assignee, a letter, indemni-
fying B and C, the official and trade
assignees, A got an authority from
B to take proceedings in the names of
B and C for the recovery of debts due
to the estate. A, having brought an
. action in the names of B and C, was
PROVISO, &c.
served by C with notice to discontinue,
on the ground that he had no authority
to use C's name. The defendant in the
action took defence, and gave notice
of motion to set aside the summons
and plaint, on the same ground. This
Court, having been applied to while
the motion in the Law Court (C P.)
was pending, ordered that said motion
be not moved, that the action be pro-
ceeded with, and that C should pay
the costs of this motion and of the
motion in the C. P. Banktcy., &c
In re JU^Kenna 65
"PROCESS;" DEFINITION OF.
See Protection Obdeb.
PROTECTION ORDER.
On the 3rd of November, R. D. filed a
declaration of insolvency ; on the 22nd
of November, F., a creditor of R. D^
with notice of the act of bankruptcy,
seized' the goods of R. D. under a
fi. fa. On the 24th of November, R.
D. presented a petition for arrange-
ment, and obtained the usual protec-
tion order. — Held^ that the order for
protection operated against the pre-
vious seizure, so as to prevent the
execution creditor proceeding to a
The Bankrupt Court has jurisdic-
tion to make an order restraining the
execution creditor from proceeding.
Remarks on the laches of both
parties in delaying the application to
the Court
The rights of the execution creditor,
in such a case, will be protected (in
the event of the arrangement proving
abortive), by the lodgment of a sum
of money in Court, to meet his demand
in that event. Banktcy., &c. In re
Delakoyd 404
PROVISO TO SELL TO MORT-
GAGEE FOR FIXED SUM
VOID, AS ONEROUS.
See MoRTOAOE Deed.
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PURCHASE-MONEY.
RENEWAL FINES. 541
PURCHASE-MONET, RETAIN-
ING IN COURT.
See Decree in Chancery.
PURCHASER.
See Vendor and Purchaser.
PURCHASER WITHOUT NOTICE.
See Contract.
Mortgage, 2.
QUESTION OF LAW.
See Issue.
RAILWAYS (IRELAND) ACT.
A person who traverses the award of the
arbitrator, under the Railways Act
(Ireland) 1851, is not entitled, under
the 22nd section of the Act, to inter-
est at £6 per cent, on the amount of
the damages awarded by the verdict,
from the time when the Railway Com-
pany went into the possession of the
lands. R. In re Dundalk and En-
niskillen Railway Co. 467
RECEIVER.
See Rentcharge.
RECITAL.
See Deed, 1.
RECBXESS TRADING.
See ^uiKJ^ Examination.
REGISTRY, AFFIDAVIT OF.
See Judgment Mortgage, I.
RELEASE.
See Mortgage, I.
RENEWAL.
1. In the conversion of a lease for lives
renewable for ever, the Landed Estates
Court will make no substantial in-
crease in the rent, by reason of the
commutation of the covenant giving
the landlord the right of pre-emption.
L. E. Ct In re Jackson 145
2. In 1808, L., being seised of a lease
for lives renewable, conveyed it to
his eldest son J., for life, with re-
mainder to X, the eldest son of J.
In 1813, L. acquired the rever-
sion of the renewable lease, and
in 1822 conveyed the reversion to R.,
the eldest son of his second marriage.
In 1854, H., the heir-at-law of R^
filed a caase petition against the exe-
cutrix of X, to recover arrears of the
rent against *X's assets. As a defence
to that suit, it was alleged that L. was
insane when he executed the convey-
ance of 1822. In May 1857, H.
served a notice on Y, the heir of X,
and also of L., calling on him to take
out a renewal. To this notice Y re-
turned an answer, declining to take
out a renewal till H.'s right was estab-
lished in the cause petition, but
nominating lives to be inserted in the
next renewal, if H. should establish
his right, and stating his readiness to
pay into Court the amount of the re-
newal fines, to the credit of the then
pending petition. In June 1857, the
Master made an order establishing
H.'s right to the reversion, as against
the executrix, which was affirmed on
appeal, on the 11th of January 1858.
There were some further proceedings
in H.*s suit up to November 1858. In
December 1858, Y tendered a renewal
and fines to H., and filed a petition
for renewal in February 1859- — Held^
that the tender was too late, and that
the right of a renewal was forfeited.
Ch. Ap. Long v. Long 252
RENEWAL, COVENANT FOR.
See Specific Performance.
RENEWAL FINES.
The contributions to renewal fines of
the tenant of a College lease, and his
sub-tenant, with a totiee guoties cove-
nant for renewal, are in proportion to
the annual valae of their respective
interests.
In calculating the valae, the rent
payable by each is to be deducted.
If there were buildings on the land
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542
RENT.
SPECIFIC PERFORMANCE.
at the date of the sub-lease, they are
to be taken into account in ascertain-
ing the value.
Qucere — If the buildings have been
afterwards erected ? R. Orr v. Lit-
tlewood 502
RENT.
See Land Improvement Act.
Landed Estates Court.
RENTCHARGE.
See Grant.
Judgment.
Land Improvement Act.
A demised certain lands for lives renew-
able for ever, at £70 a-year. A after-
wards agreed to purchase the lessee's
interest, then vested in B, in consi-
deration of a perpetual rentcharge of
£20 a-year; and, to carry out the
contract, B demised the lands for the
same lives, renewable for ever, at a
rent of £90 a-year, to C, in trust for
A. C died ; whereupon the interest
in the latter lease became vested in
B, as C's heir-at-law. — Held^ that a
suit could be maintained by B for a
receiver to recover the arrears of
the profit-rent of £20, there being no
remedy for it at Law. R. Tohin v.
Redmond 445
REPRESENTATION.
See Deed, ?•
REPRESENTATIVE OF LESSOR.
See Conventional Rents, Ar-
rears OF.
RESIDUE.
See Will, 2, 10.
RESIDUARY LEGATEE.
See Bequest.
RETURN TO WRIT.
See Partition Suit.
REVIVAL AND RE-DOCKETING.
See JuDGBiENT.
SALE.
See Landed Estates Court.
SECRET TRUST.
See WiijL, 4.
SEIZURE OF SHARES IN SHIP.
See Judgment Creditor.
SEPARATE ESTATE,
CONVEYANCE OF.
See Descendible Freehold.
^ SETTLEMENT.
A marriage settlement contained a clause
that the provision thereby made and
intended for the wife, in the event of
her viduity, should be accepted, deem-
ed and taken in full lieu of dower or
thirds, to which she might be entitled
at Common Law, or otherwise how-
soever.— Held^ that she was barred of
her share of her husband's personal
estate, under the Statute of Distribu-
tions. R. In re Burgess* Trusts
164
SHERIFF, BILL OF SALE BY.
See Judgment Creditors.
SPECIFIC PERFORMANCE.
See Contract.
Theatre.
Will, 14.
In 1827, a lessor, as to whom it was
disputed whether she was only tenant
for life, or was entitled in quasi tail
for lives renewable for ever, made a
le^se for her own life, with a cove-
nant that if she should be enabled,
either separately or in conjunction
with any other person or persons, to
grant the said premises for any longer
term than was thereby granted, she
would, at the request and costs of the
lessee, execute all such further act or
acts, &c., for the purpose of granting
the premises to him, for any term not
exceeding three lives, with covenant
for perpetual renewal, on payment of
a peppercorn fine on the faU of each
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SPECIFIC PERFORMANCE.
THEATRE.
543
life, at the rent thereby reserved, &c.,
and the lessee covenanted for himself,
his heirs and assigns, with the lessor
to accept such grant. It was decided
by the Court of Appeal (7 Ir. Cljan.
Kep. 388) that the lessor was tenant
in quaii tail.
Semble. — The covenant was a per-
sonal covenant, binding on the lessor
during her life, and did not descend
with the land.
No claim was made on foot of the
covenant during the lifetime of the
lessor, who died in 1854. Judgments
had been obtained by the petitioners
for the same debt against the lessee
and B., who was entitled in remain-
der to the reversion, and who after-
wards became entitled to the lessee's
interest. After the lessee's death, a
petition was filed by creditors of K.,
in the Incumbered Estates Court, for
sale of the reversion, on the ground
that the lessor was only tenant for
life, or, if she were tenant in quasi
tail, that she had not barred the
entail. The petitioners were made
parties in that matter, as judgment
creditors of B. ; and, after it was dis-
missed by the Court of Appeal, they
had, in other proceedings in the
Landed Estates Court, admitted the
right of the respondents, who were
devisees of the lessor, and had gone
into possession of the lands. — Seld^
that the right to a specific perform-
ance of the covenant had been aban-
doned, and was barred by laches and
acquiescence.
A judgment creditor of a tenant
may maintain a suit for a renewal.
B. Homan v. Skellon 75
STATUTES QUOTED.
8 & 4 FF. 4, c. 27.
3 & 4 Vic, c. 107, 88. 78, 79, 80.
13 & 14 Ftc, c. 29, 8. 6.
20 & 21 Vic, c 60, ss. 225, 226, 227,
257, 258.
21 & 22 Vicy c. 72, s. 41.
STOCK IN TBADE.
See Will, 12.
SUPPLEMENTAL AFFIDAVIT.
See Judgment Mortgage, 5.
TAKING ADVANTAGE OF
OBJECTION FILED BY
ANOTHER PARTY.
See Objection to Incumbrance,
ON Settlement of Final
Schedule in Landed Es-
tates Court.
TENANT FOR LIFE.
See Will, 7.
A, tenant for life of lands (with power
of charging £1000 thereon for his
own use), with remainder (in the
events which happened) to his daugh-
ter B in tail male, bj a deed, for
value, conveyed the lands, and all
his interest therein, to B, subject
(amongst other things) to the charge
of £1000, and covenanted for good
title, quiet enjoyment and further
assurance. B subsequently became
the purchaser of a judgment for
£3000, entered up against A before
the date of the conveyance. — Held^
that although the effect of the con-
veyance was not to merge the charge
during the lifetime of A, yet that the
petition must be dismissed with costs,
on the principle of Equity that a
tenant for life, having a charge on
the inheritance for his own benefit,
cannot deal with it so as to prejudice
a judgment creditor on his life estate,
and also because, under the covenant
for quiet enjoyment, A was bound
to indemnify B against the judgment,
the amount of which he must pay
before he could raise his charge of
£1000. L. E. Ct. In re Gardiner
519
TENANTRY ACT.
See Renewal, 2.
THEATRE.
The owners of a theatre, by deed bear-
ing date in 1839, made for .valuable
3
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544 THIRDS, BAR OF.
consideration, covenanted to confirm
to certain debenture holders the pri-
vilege of free admission to the theatre.
The petitioner was entitled, as one of
the debenture holders, to the benefits
of the deed of 1839, but subsequently
lost his debenture. In 1851, the
respondent became lessee of the thea-
tre, with notice of the deed of 1839.
Beldy that the petitioner was not
entitled specifically to enforce against
the respondent the privilege of free
admission created by the deed of 1839*
C. Malone v. ffarris 33
THIRDS, BAR OF.
See Settlement.
TRADER REMOVING FROM
LONDON TO DUBLIN.
See Jurisdiction.
TRAVERSE.
See Lunacy.
TRUST.
A testator, being possessed of £4000
stock, bequeathed of it £2000 to an in-
dividual. £1000 of the remainder he
bequeathed for the use of Protestant
schools of St. Peter's parish, and ano-
ther £1000 for the use of the school
attached to the Episcopal chapel in
B.-street. The chapel in B«-street
had no school attached to it. B.-street
was in St. Peter's parish. — Beidy that
with regard to the second £1000, the
will showed a general charitable inten-
tion, which might be executed eypresy
in favour of Protestant schools in St.
Peter's parish; and it was referred
to the Master to settle a scheme
accordingly.
The costs, down to and including
the hearing, ordered to be paid out
of the residue ; the costs of the refer-
ence to be borne by the fund. C.
Daly V. Attorney- General 41
VALIDITY OF AFFIDAVIT.
See Judgment Mobtoaob, 2, 3.
WASTE.
VALIDITY OF JUDGMENT.
See JuDGMZNT Mobtgagb, 4.
VARIANCE.
See Judgment Mortgage, 1.
VARIANCE AS TO SUM
RECOVERED FOR COSTS.
See Judgment Mortgage, 3.
VENDOR AND PURCHASER.
Where a purchaser is in possession of
lands, under an executed conveyance,
and part of tl]i^ purchase-money has
been secured'^by a bond, the purcha-
ser may come into Equity to have
it employed in discharge of an arrear
of head-rent due at the date of the
conveyance, and is not confined to
his remedy at Law, on the covenants
in his conveyance. Ch. Ap. Woods
V. Martin 148
VERDICT.
See Railways (Ireland) Act.
VOLUNTARY COVENANT.
See Husband and Wifb.
WASTE.
Where a lessee, bound by covenant not
to commit waste, has committed acts
of waste, for which damages merely
nominal would be given, the Court of
Chancery will not entertain a anit
against him, founded on those acts of
waste, where it appears that he does
not contemplate committing any fur-
ther waste, nor assert a right to com-
mit it. No change in this respect
has been introduced by the Chancery
Amendment Act 1858.
A tenant, by replying to a lettter
charging him with the commission of
waste, and requiring him to make
compensation for it, '* that he is pre-
pared to defend any action which may
be brought against him, and to show
that, so far from having committed
injury, he has materially improved
the premises demised to him," does
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WIDOW.
WILL.
545
1
a
onertt
lifted -
))ACT.
[AST.
It be 4^
isresp*
not assert a right to commit the waste
complained of. C. Doran v. Carroll
379
WIDOW.
See Settlement.
WIFE'S FORTUNE.
See Power to Jointure, Execu-
tion OF.
WILL.
L Beqaest of the interest of £600 to A
for life, and, as to the principal, after
the decease of A, and as '^ to all other
property belonging to me, that I may
die seised and possessed of or entitled
unto, in trust, for the use, benefit and
behoof of " B and her children, " with-
out the control or intermeddling of
her husband, and to be paid in such
manner as mj said trustees shall in
their discretion think fit." — Held^ that
B took a life interest in all the pro-
perty, with remainder to all her
children born in A's lifetime, before
and after the deatli of the testatrix.
R. Scotir.ScoU 114
2. A lapsed share of a residue of real
and personal estate, devised, subject
to the payment of debts, funeral and
testamentary expenses, is not liable
to the debts of the testator, in exone-
ration of the rest of the residuary
estate, but rateably with it. L. E. Ct.
In re Rathbome 141
3. Where there is an indefinite bequest
to the parent, and, if he die without
having or leaving children, over, the
children do not take by implication.
Where there is a bequest to the
parent for life, and, if he die without
having or leaving children, over, the
children are not entitled by implica-
tion.
Where there is. a bequest to the
parent for life, and, if he die without
having or leaving children, over, and
there are matters in the will to raise
an inference in favour of the children,
the Court is at liberty to take them
in connection with the bequest in the
event of the parent dying without
having or leaving issue, and to hold
that the children are entitled by
implication.
A testator bequeathed to each of
his grand-nephews, A and B, an
annuity for their respective lives,
and, in case of the death of either of
them, leaving issue, he directed that
the annuity of him so dying should
go to such issue, if more than one,
share and share alike ; the share or
shares of such child or children as
should die under twenty-one or mar-
riage to go to and be equally divided
amongst the survivor and survivors
of such issue, during their respective
natural lives ; and if but one, the
whole of the annuity to go to such
only child for life ; and in case of the
death of either A or B without lawful
issue living at his death, that the
annuity of him so dying should go to
the survivor for his life ; and in case
of the death of both A and B without
leaving issue, or, leaving such, and
that such issue should die before the
age of twenty-one years, then, after
the death of the survivor of such
issue of A and B, he directed that
the said two annuities should sink
into his residuary personal estate.
A died without issue. — Held^ that
there was a bequest, by implication,
of A's annuity to the children of B.
R. Kinsella v. Caffrey 154
. A testator bequeathed to his two
sons all his property, real and perso-
nal, to have and to hold the same in
the most absolute manner, and he
declared it to be his will and intention
that his sons should at their discretion,
and according to their own judgment,
allocate to the other members of his
family, being his lawfully begotten
children, such portions of the said
property and goods, be the same
more or less, as to them should seem
fit and suitable ; and he appointed his
said sons his executors. — Held, coup-
ling the will with an admission in
the petition by the sons, of the testa-
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546
WILL.
WILL.
tor's intention, that a trust had been
created, and that the sons wefre
trustees for the other children of the
testator as to the entire property of
the testator, both real and personal.
R. Gray v. Gray 218
5. A, by his will, dated the 29th of
May 1836, bequeathed to his illegiti-
mate son, B. S., certain leaseholds,
and, if the said B. S. should die
without " heirs or issue," over. — Held^
that as the 29th section of the Wills
Act is expressly confined to the word
^' issue," it makes no change in the
meaning of the expression ** die
without heirs of the body;*' and
therefore ("without heirs," in the
said will, meaning " without heirs of
the body," B. S. being illegitimate),
the will did not confer the absolute
interest on B. S., with an executory
devise over in the case of his dying
without issue living at his death, but
an estate tail, and, the property being
leasehold, the absolute interest. L. E.
Ct. In re Sallery 236
6. A testator gave all his property, real
and personal, to trustees, and directed
that they should sell his freehold
estate, and make up an account of his
estate, so that they might be able to
make a division among his nine
children, to whom he left the same
in equal shares. After other dii-ec-
tions, he declared that he left the
shares of his daughters to them for
their respective lives, free from the
control of their husbands, with power
to appoint the same among their
children, notwithstanding coverture.
In a subsequent clause he directed
that the shares of his sons who should
have attained twenty-one at the time
of his death should forthwith vest in
them ; and that the shares of the
other sons should vest as they should
afterwards respectively attain the ages
of twenty-one years ; and the shares
of the daughters on marriage; and
that the shares of the sons who should
die under twenty-one, and of daughters
who should die unmarried, should go
amongst the survivors as therein men-
tioned. J., one of the testator's
daughters, married, and died without
having exercised the power of appoint-
ment, leaving one child. — Held, that
J. took an absolute interest in her
share of the fund. C. M'Tear v.
McDowell 338
7* A testator, by his will, made in 1836,
executed a power of appointing among
his younger sons a sum of £2000,
charged by his marriage settlement
on the lands of H., of which he was
tenant for life. After his death, his
eldest son, who took the lands of H.,
as tenant in tail, conveyed them in
1837, to trustees, to secure a sum of
£1600, by way of mortgage; the
younger sons being parties to the
mortgage, and consenting thereby to
postpone their claims to it ; and, at
the same time, the eldest son executed
his bond collateral, for securing the
same sum, and warrant, upon which
judgment was entered. In 1841, the
eldest son purchased the lands of F. ;
and, in 1 845, a judgment was obtained
against him by S. The lands of H.
and F. were subsequently sold in the
Landed Estates Court ; and the pro-
ceeds of H. having proved insufficient
to pay the amount due on foot of the
mortgage, it was ordered, by a Judge
of that Court, that the mortgage debt
should be paid rateably out of the
proceeds of H. and F., and the sur-
plus of H. applied in discharge of the
appointees' claims, and the surplus of
F. in discharge of the judgment of
1845.
This Court, upon appeal, reversed
that decision, being of opinion that no
equity had arisen upon the purchase
of F., in favour of the appointees under
the will, so as to entitle them to in-
sist upon the mortgagee's claim being
paid rateably out of the proceeds of
H. and F. ; and that, consequently,
the doctrine of marshalling did not
apply. Barnes v. Racster (1 Y. and
Col., Ch. Cas., 401) commented on.
Ch. Ap. In re Lawder's Estate 346
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WILL.
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547
8. A, hj his will, leaves to F. M. F.,
and to " his sister, M. F., my grand-
daughter, share and share alike, said
M. F. now living in France with her
uncle M.," all his estates. M. F. was
. not then living, and had never lived,
while her sister, C. F., was living,
and had lived, for some time, with
the said uncle M. — Held, that extrin-
sic evidence was admissible to explain
the ambiguity in the will.
Held alsOy that there was not such
a perfect balance of probabilities as to
suspend the action of the Court.
Held aUoy that the name should
control the description, and that M.
F. was, therefore, entitled. L. E. Ct.
In re Plunkett*t Estate 361
9* Bequest of portion of a chattel real
'* to my son J^ and,^ if J. dies without
a lawful male heir, his part of the land
falls to his brother R. I also order
that the part of the lands which I be-
queath to my son J. is to fgill to his
youngest son, without any incum-
brance."— Heldy that ^' did not take
an absolute interest in his portion of
the lands, and tliat the gift over to R.
was not too remote. Cb. A p. Dodds
v. Dodds 374
10. A testatrix, after many pecuniary
and some specific bequests, proceeded,
" The remainder of my property I
leave to my sister S. F. ; " then, after
a few legacies, ** I appoint my two
sisters, S. F. and O. G., my execu-
trixes and residuary legatees of this
my last will." — Held^ that the gift of
the remainder of her property to S.
F. was not revoked, and that the ap-
pointment of S. F. and 0. G., resi-
duary legatees, only gave them any
legacies which lapsed. C. In re
Jessop 424
1 1. A testatrix devised several annuities,
which she directed only to be a lien
upon and charged on the yearly in-
come of her lands, real, freehold and
chattel real, but not upon any other
personal estate ; and she directed that
if the yearly income of her lands
should fall short of paying the an-
nuities, the deficiency should equally
and proportionably be upon all such
annuities, each to receive according
to the magnitude of such annuity, and
in proportion thereto; but no such
deficiency to be vested upon her per-
sonal estate ; and she devised the
residue of her property, real and per-
sonal, after satisfying and discharging
said annuities, &c. The income of
the lands was insufficient to pay the
entire of the annuities. — Held^ that
the annuities, being charged on the
income of the lands only, were, for
each year, satisfied by payment of a
proportionable share, and that the
arrears were not charged on the future
rents. R. Fitzgerald v. O'Connell
437
12. A testator, having three sons, A,
B and C, devised certain property to
A; and other leasehold property,
together with all the stock-in-trade
which should be in the premises, to
B and C, as tenants in common ; and
in case his said sons, or either of
them, should die without leaving law-
ful issue him surviving, he directed
that the share of such son so dying,
in the premises, and in the stock"
in-trade which should be therein at
the time of such decease, should go
to and be divided, share and share
alike, between such of his said sons
as should be then living, as tenants
in common. B and G carried on the
trade after the testator's death ; and
B died without issue, leaving A and
C surviving. — Held, that no case of
election arose, there being no condi-
tion attached to the bequest, that the
stock on the premises, at the death
of either of the sons, should be sub-
ject to the bequest. A, therefore, is
only entitled to a moiety of the stock-
in-trade at the testator's death. R.
Thornton v. Thornton 474
13. A testator bequeathed to his four
daughters unmarried a sum of £2000
each, on their day of marriage, with
tiie consent of his trustees, with inter-
est, by way of maintenance, in the
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548
WILL.
WILL.
meantime; and, if one of his said
daughters should die without being
married, he desired the fortune and
legacies of her so being the first to
die to go to and be divided equally
amongst such of his married sons and
daughters as might have issue at the
death of such dying daughter. The
four unmarried daughters survived
the testator ; and one of them died
unmarried and without issue. — Held^
that her legacy was divisible among
the testator's sons and daughters who
were married at the date of the will,
and survived her, and had Issue liv-
ing at the time of her death. R.
Elliott V. Elliott 482
14. A, seised in fee, conveyed lands to
B and C, and the survivor of them,
and the heirs of the survivor, to the
use of A for life, and, after his
decease, to the use of B and C, and
the survivor, and the heirs of such
survivor, upon trust to permit and
suffer D to reoeive a jointure, and,
after the death of D, then to the use
of the right heirs df A. — Held^ that
B and C took a legal estate in fee in
remainder.
A, having made a will, devising
all his property to his wife, and hav-
ing contracted to sell the lands, and
afterwards died : — Held^ in a suit for
specific performance by the purcha-
ser, that the heir-at-law of A was not
a necessary party to the conveyance,
as he had no legal estate in the lands,
and no equitable estate, and no right
to institute a suit to set aside the con-
tract, having regard to the will of A,
devising all his property to his wife,
who, if the contract was set aside,
would be entitjed to the lands ; and,
if the contract was not set aside,
would be entitled to the purchase-
money. — \Robert$ v. Marckant ex-
plained.]— B. Fowler v. Lightbume
495
INDEX TO APPENDIX.
BENEFICED CLERGYMAN
PREACHING.
See Inhibition.
LICENSE.
See Inhibition.
INHIBITION.
An inhibition, signed at the Bishop's
desire, by the Vicar- General of a
diocese, and under the seal of the Con-
sistorial Court, forbidding a strange
clergyman preaching in the diocese,
is, in fact, the inhibition of the Bishop,
and is not a judicial act requiring a
previous citation. A Bishop of one
diocese has the power to inhibit, at
his pleasure, and without cause as-
signed, a beneficed and licensed cler-
gyman of another diocese from offici-
ating or preaching in his diocese
without his license, though the cler-
gyman has the leave of the Incumbent
to preach in his church.
A license to serve a cure in one
diocese determines by the curate giv-
ing up the cure, and leaving the
diocese wherein he was residing.
A usage of clergymen of difierent
dioceses to occasionally assist one ano-
ther, and preach without the Bishop*s
license, is of no avail against his inhi-
bition. Consist. Ct. Bishop of Down
and Connor v. Miller i
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